               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39811

STATE OF IDAHO,                           )
                                          )             2014 Opinion No. 7
    Plaintiff-Respondent-Cross Appellant, )
                                          )             Filed: February 4, 2014
v.                                        )
                                          )             Stephen W. Kenyon, Clerk
MARTIN CARDENAS CARDOZA, aka              )
MARTIN CARDOZO-CARDENAS, JOSE )
CARDENAS CARDOZA, JOSE CARDOZA )
CARDENAS, ISMAEL ALONZO-                  )
CARDOZA, ISMAEL ALONZO-                   )
CARDOZO, MARTIN CARDOZA                   )
CARDENAS, ISMAEL ALONZO-                  )
CARDOZO, ISMAEL ALONZO,                   )
                                          )
    Defendant-Appellant-Cross             )
    Respondent.                           )
                                          )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Renae J. Hoff, District Judge.

       Judgment of conviction for aiding and abetting trafficking                         in
       methamphetamine, affirmed. Restitution order vacated and case remanded.

       Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant.                 Jeffrey
       Brownson argued.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent. John C. McKinney argued.
                 ________________________________________________
LANSING, Judge
       Martin Cardenas Cardoza appeals from his conviction for aiding and abetting trafficking
in methamphetamine, Idaho Code §§ 37-2732B(a)(4), 18-204. Cardoza contends that the district
court erred in admitting evidence that he had engaged in prior drug transactions and evidence
that methamphetamine was found in his pickup in Oregon. The State cross-appeals, contending
that the district court erred by denying its request for restitution for the prosecutor’s time spent



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on this case. We affirm the judgment of conviction, vacate the restitution order, and remand for
further proceedings.
                                                I.
                                        BACKGROUND
        In May of 2011, an individual was arrested by the Idaho State Police. At the time, he was
on felony probation for drug possession.        With the aim of avoiding adverse probation
consequences, this individual agreed to cooperate with law enforcement in pursuit of other drug
distributors.   He told Idaho State Police Detective Christensen that he had been selling
methamphetamine that he obtained in bulk periodically from J.C. and another man he had met
and communicated with several times but knew only as “El Primo.” The informant further said
that sometimes both men made the delivery but other times El Primo was alone.                 At
Christensen’s request, the informant arranged for the delivery of one pound of
methamphetamine. The informant contacted El Primo and set a time for the delivery at a mall
parking lot in Nampa.
        The informant, Christensen, and several ISP officers attended and awaited the arrival of
the vehicle that the informant said had been used in previous deliveries, a green GMC Yukon
with Canyon County, Idaho license plates. When the Yukon arrived, it was accompanied by a
red Mazda whose driver was apparently engaged in countersurveillance. The drivers were the
only occupants of the vehicles. Before any exchange or contact between the informant and either
driver, police pulled the drivers from the vehicles and arrested them. The driver of the Yukon
was the defendant, Cardoza, whom the informant identified as the person he knew as El Primo.
The driver of the Mazda was Trinidad Cardoza, the defendant’s uncle.           The Yukon was
registered to Trinidad. A plastic bag containing a pound of methamphetamine was found on the
floor of the Yukon, partially hidden under a piece of paper.
        The police, with the aid of Oregon authorities, obtained search and arrest warrants and
went to J.C.’s residence in Nyssa, Oregon. There they found parked outside of the residence a
white pickup with California plates that was registered to Cardoza. In searching the pickup,
police found over one pound of methamphetamine in the glove box and airbag compartment.
        Based upon the drugs found in Idaho in the Yukon, Cardoza was charged with aiding and
abetting trafficking in methamphetamine (over 400 grams) by delivery or possession, I.C. §§ 37-
2732B(a)(4), 18-204.     Prior to trial, and pursuant to Idaho Rule of Evidence 404(b), the


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prosecution filed a notice of its intent to introduce evidence of the methamphetamine found in
Cardoza’s truck in Oregon and testimony from the informant concerning Cardoza’s procedures
and statements in prior drug deliveries. At a hearing after jury voir dire but before opening
statements, the prosecutor made an offer of proof of the nature of the evidence and testimony he
sought to introduce. Defense counsel objected, contending that such evidence would be unfairly
prejudicial. The district court concluded the evidence was relevant to, among other things,
showing Cardoza’s knowledge of the presence of the drugs in the Yukon and that its probative
value was not substantially outweighed by the risk of unfair prejudice to Cardoza. Accordingly,
the district court held Rule 404(b) did not preclude admission of the evidence.
       The jury found Cardoza guilty.        Cardoza appeals from the ensuing judgment of
conviction, asserting that the district court erred in its Rule 404(b) determination. The State
cross-appeals, contending that the district court erred by partially denying the State’s motion for
restitution under I.C. 37-2732(k).
                                                II.
                                           ANALYSIS
A.     Evidence of Other Drug Possession and Transactions
       Over Cardoza’s objection, the district court allowed the informant to testify that he had
met Cardoza through J.C. in the course of drug transactions and that the informant had known
him only as “El Primo.” The informant said that from these prior transactions, he knew that
Cardoza obtained the drugs in California and transported them to the Idaho area by automobile,
but Cardoza made the delivery of the drugs in Idaho in a borrowed vehicle with Idaho license
plates so as not to arouse suspicion. He said that Cardoza had previously used the green Yukon
for deliveries in Idaho, and that J.C. and Cardoza worked together.         Also over Cardoza’s
Rule 404(b) objection, the court allowed officers to testify that after arresting Cardoza for his
possession of the methamphetamine found in the Yukon in Idaho, they found additional
methamphetamine in the truck in Oregon that was registered to Cardoza. On appeal, Cardoza
argues that the court erroneously found this evidence admissible despite the restrictions of
I.R.E. 404(b).
       Rule 404(b) precludes admission of evidence of uncharged crimes, wrongs, or acts “to
prove the character of the person in order to show that the person acted in conformity therewith.”
Such evidence may be admitted, however, for purposes other than those prohibited by


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Rule 404(b). State v. Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). When
addressing a Rule 404(b) objection, the trial court is to first determine whether there is sufficient
evidence of the other acts that a reasonable jury could find the uncharged conduct actually
occurred. If so, then the court must consider: (1) whether the other acts are relevant to a
material disputed issue concerning the crime charged, other than propensity; and (2) whether the
probative value is substantially outweighed by the danger of unfair prejudice. State v. Grist, 147
Idaho 49, 52, 205 P.3d 1185, 1188 (2009); Parmer, 147 Idaho at 214, 207 P.3d at 190. On
appeal, this Court defers to the trial court’s determination that there is sufficient evidence of the
other acts if it is supported by substantial and competent evidence in the record. Parmer, 147
Idaho at 214, 207 P.3d at 190. We exercise free review, however, of the trial court’s relevancy
determination. State v. Sheldon, 145 Idaho 225, 229, 178 P.3d 28, 32 (2008). The trial court’s
balancing of the probative value of the evidence against the danger of unfair prejudice is
reviewed for an abuse of discretion. State v. Norton, 151 Idaho 176, 190, 254 P.3d 77, 91 (Ct.
App. 2011).
       Cardoza first contends that the district court did not make the determination required by
Grist that there was sufficient evidence from which the jury could find that the prior drug
transport activities described by the informant actually occurred. He asserts that the court erred
because it failed to make the requisite finding on the record. In Cooke v. State, 149 Idaho 233,
233 P.3d 164 (Ct. App. 2010), we held that a trial court is required to make a specific articulation
as to the sufficiency of the evidence of the uncharged conduct only if that question is squarely at
issue. Id. at 240, 233 P.3d at 171. If the sufficiency of the evidence is at issue, a specific finding
is necessary for the determination of relevance. Id. If the defendant did not dispute in the trial
court that the alleged other crimes, wrongs, or acts occurred, then the trial court is not called
upon to make a determination on the record to the sufficiency of the evidence of their
occurrence. Id. See also State v. Gomez, 151 Idaho 146, 151, 254 P.3d 47, 52 (Ct. App. 2011).
       Here, Cardoza did not contend in the district court that the informant’s testimony about
Cardoza’s other uncharged criminal acts was insufficient to permit a jury finding that they
occurred. 1   He argued only that the evidence was inadmissible because the risk of unfair




1
        Had he done so, the State might have sought to marshal other supporting evidence.

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prejudice substantially outweighed its probative value. Accordingly, the district court was not
required to address a specific finding to that issue.
       Cardoza next asserts that the district court erred in finding that the evidence was relevant
to Cardoza’s knowledge of the presence of the methamphetamine in the Yukon. We begin by
noting that Cardoza’s defense attorney conceded to the district court that the evidence was
“relevant to intent, and that is an intrinsic element of the crime that’s been charged,” and counsel
argued only that the risk of unfair prejudice of that evidence substantially outweighed its
probative value. Thus, the district court’s determination that is now challenged on appeal
appears to have been invited.
       Even if this concession does not bar Cardoza’s contrary argument on appeal, we find the
argument to be meritless. In order to prove Cardoza guilty of possession of methamphetamine,
the State was required to prove that he had both knowledge and control of the methamphetamine
found in the Yukon. State v. Blake, 133 Idaho 237, 242, 985 P.2d 117, 122 (1999); State v.
Ortiz, 148 Idaho 38, 41, 218 P.3d 17, 20 (Ct. App. 2009); State v. Silva, 134 Idaho 848, 855, 11
P.3d 44, 51 (Ct. App. 2000). The evidence that a large quantity of methamphetamine was also
found in a vehicle registered to Cardoza at a nearby location in Oregon supports an inference that
he had knowledge and control of the methamphetamine in the Yukon he was driving in Idaho.
The informant’s testimony showed a direct connection between the drugs found in the two
vehicles. He said that Cardoza had disclosed that his method of operation was to obtain drugs in
California and transport them to the Idaho area in his own automobile, but he would then
transport and deliver the drugs in Idaho in a borrowed vehicle with Idaho plates. The informant
also said that Cardoza had previously used the same green Yukon for that very purpose. The
testimony tends to show that when detained in this case, Cardoza was engaged in the very same
modus operandi, following the same plan of operation, that he had used in other drug deliveries.
It therefore supports the inference that he was engaged in a similar drug delivery and was
cognizant of and exercising control over the methamphetamine in the Yukon when arrested in his
case. Indeed, the testimony tended to show that the two quantities of methamphetamine found in
two vehicles were parts of a single, ongoing criminal episode.            The probative value is
particularly acute in this case because Cardoza used a borrowed vehicle to make his actual
delivery in Idaho, thereby preserving and lending plausibility to a later claim that the drugs did
not belong to him and that he was unaware of their presence.


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       This circumstance is similar to that which we addressed in State v. Pullin, 152 Idaho 82,
87, 266 P.3d 1187, 1192 (Ct. App. 2011), where the defendant was charged with possession of
methamphetamine found in his pants pocket and objected to the admission of evidence of two
pipes with methamphetamine residue found in his vehicle. We held that the evidence from the
vehicle was relevant to show the defendant’s knowledge of the methamphetamine in his pants
pocket. Id. We noted that, “in a possession of a controlled substance case ‘[t]he greater the
amount of controlled substance found in a defendant’s possession, the greater the inference of
knowledge.’” Id. (quoting State v. Groce, 133 Idaho 144, 152, 983 P.2d 217, 225 (Ct. App.
1999). For this reason as well, the district court here did not err in holding that drugs in Oregon
were relevant for purposes other than mere propensity to engage in criminal conduct.
       Cardoza additionally argues, however, that the district court erred by allowing the State
to submit the evidence in its case-in-chief to show his knowledge of the drugs in the Yukon
because Cardoza had not yet, in the course of the trial, disputed that knowledge. Cardoza’s
argument is unsupportable. He pleaded not guilty, thereby contesting the charge. The State bore
the burden to prove, as an element of the crime, that Cardoza had both knowledge and control of
the methamphetamine found in the Yukon, regardless of whether Cardoza ever testified or
otherwise expressly disputed the knowledge element. Therefore, the State was properly allowed
to present the evidence in its case-in-chief. Moreover, Cardoza fails to acknowledge that in
ruling on the admissibility of the evidence, the district court observed that Cardoza’s questions to
the venire during voir dire revealed that his defense would be lack of such knowledge, and
therefore a pretrial determination of admissibility was warranted. Cardoza’s closing argument
asserted this precise defense.
       Finally, and only as to the drugs found in his vehicle in Oregon, Cardoza contends that
even if the evidence was relevant, the district court erred in concluding that the risk of unfair
prejudice resulting from the evidence did not substantially outweigh its probative value. We
review this determination for an abuse of discretion. Grist, 147 Idaho at 52, 205 P.3d at 1188.
When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a
multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as
one of discretion; (2) whether the lower court acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it; and (3) whether




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the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989).
       The gist of Cardoza’s argument is that the district court did not articulate well its reason
for finding that the evidence’s probative value was not substantially outweighed by the risk of
unfair prejudice. We disagree. The record shows that the district court correctly recognized this
decision was within its discretion, detailed the applicable law on Rule 404(b) evidence, and used
reason in its analysis of that law. No abuse of discretion has been shown.
B.     Restitution for Prosecutor’s Salary
       In its cross-appeal, the State contends that the district court erred in denying a portion of
its request for restitution under I.C. § 37-2732(k). The district court disallowed the State’s
request for $1,500 in restitution, calculated by multiplying the deputy prosecutor’s hourly rate-
of-pay by the number of hours spent prosecuting the offense, including time spent at pretrial
hearings, at trial, and at sentencing. The district court reasoned that because attorney fees were
not expressly listed as recoverable in the restitution statute, the requested restitution was not
authorized.
       The statute in question, I.C. § 37-2732(k), authorizes restitution upon convictions under
Chapter 27 of Title 37, Idaho Code. It states, in relevant part:
               Upon conviction of a felony or misdemeanor violation under this
       chapter . . . the court may order restitution for costs incurred by law enforcement
       agencies in investigating the violation. Law enforcement agencies shall include,
       but not be limited to, the Idaho state police, county and city law enforcement
       agencies, the office of the attorney general and county and city prosecuting
       attorney offices. Costs shall include, but not be limited to, those incurred for the
       purchase of evidence, travel and per diem for law enforcement officers and
       witnesses throughout the course of the investigation, hearings and trials, and any
       other investigative or prosecution expenses actually incurred, including regular
       salaries of employees.

       In addressing the scope of recoverable costs under the statute, this Court has noted: “It is
true that the first sentence of the statute refers to costs incurred in investigating a violation, but
the statute provides for reimbursement for numerous costs that would not, in the everyday use of
the term, be considered part of an ‘investigation.’” State v. Mosqueda, 150 Idaho 830, 834, 252
P.3d 563, 567 (Ct. App. 2010). Our Supreme Court has held that “when the language of a statute
is definite, courts must give effect to that meaning whether or not the legislature anticipated the
statute’s result.” Viking Const., Inc. v. Hayden Lake Irr. Dist., 149 Idaho 187, 192, 233 P.3d

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118, 123 (2010), abrogated on other grounds by Verska v. Saint Alphonsus Reg’l Med. Ctr., 151
Idaho 889, 265 P.3d 502 (2011). In Verska, the Court expanded upon this point:
                “The asserted purpose for enacting the legislation cannot modify its plain
       meaning. The scope of the legislation can be broader than the primary purpose for
       enacting it.” Viking Constr., Inc. v. Hayden Lake Irr. Dist., 149 Idaho 187, 191-
       92, 233 P.3d 118, 122-23 (2010). “If the statute as written is socially or otherwise
       unsound, the power to correct it is legislative, not judicial.” In re Estate of Miller,
       143 Idaho 565, 567, 149 P.3d 840, 842 (2006). The interpretation of a statute
       “must begin with the literal words of the statute; those words must be given their
       plain, usual, and ordinary meaning; and the statute must be construed as a whole.
       If the statute is not ambiguous, this Court does not construe it, but simply follows
       the law as written.” State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721
       (2003) (citations omitted). “We have consistently held that where statutory
       language is unambiguous, legislative history and other extrinsic evidence should
       not be consulted for the purpose of altering the clearly expressed intent of the
       legislature.” City of Sun Valley v. Sun Valley Co., 123 Idaho 665, 667, 851 P.2d
       961, 963 (1993).

Verska, 151 Idaho at 892-93, 265 P.3d at 505-06. Consequently, Verska concludes, a statute
must be applied as written even if the statute “is patently absurd or would produce absurd results
when construed as written.” Id. at 896, 265 P.3d at 509.
       Applying these standards, the plain language of I.C. § 37-2732(k) allows an award of
restitution for any “costs incurred by law enforcement agencies,” and law enforcement agencies
expressly includes “county . . . prosecuting attorney offices.” The statute further expressly
provides that “[c]osts shall include” “prosecution expenses . . . including regular salaries of
employees” incurred “throughout the course of . . . hearings and trials.” Further, the statute
states that its expressed list of recoverable costs is not all-inclusive. This statutory language
plainly encompasses the salaries of prosecutors for their time devoted to the particular case.
Cardoza argues that allowing restitution for prosecutors’ salaries constitutes unsound public
policy and creates undesirable incentives for prosecutors. As Verska states, however, the power
to correct unwise policy encompassed within a statute lies solely with the legislature.
       The district court erred by concluding that I.C. § 37-2732(k) did not authorize restitution
for the prosecutor’s salary for time expended on this case. Therefore, this matter must be
remanded for the district court to reconsider the State’s restitution request. On remand, the
district court may exercise its discretion in determining the amount, if any, to award. See




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Mosqueda, 150 Idaho at 835, 252 P.3d at 568 (noting that the word “may” in the statute is
permissive, denoting the right of the court to exercise discretion).
                                                III.
                                         CONCLUSION
       Cardoza having demonstrated no evidentiary error, the judgment of conviction is
affirmed. The district court order partially denying the prosecution’s motion for restitution is
vacated and this matter is remanded for further proceedings consistent with this opinion.
       Judge GRATTON and Judge MELANSON CONCUR.




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