                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 45560

STATE OF IDAHO,                                   )
                                                  )   Filed: December 21, 2018
          Plaintiff-Respondent,                   )
                                                  )   Karel A. Lehrman, Clerk
v.                                                )
                                                  )   THIS IS AN UNPUBLISHED
NORA COLLEEN WASHBURN,                            )   OPINION AND SHALL NOT
                                                  )   BE CITED AS AUTHORITY
          Defendant-Appellant.                    )
                                                  )

          Appeal from the District Court of the First Judicial District, State of Idaho,
          Kootenai County. Hon. Scott L. Wayman, District Judge.

          Judgment of conviction and order of restitution, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
          Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
          General, Boise, for respondent.
                    ________________________________________________

GRATTON, Chief Judge
          Nora Colleen Washburn appeals from the district court’s order denying her motion for
judgment of acquittal and from the district court’s order of restitution. In addition, Washburn
claims that the prosecutor committed misconduct thereby violating her right to due process and a
fair trial. Washburn argues that: (1) the State’s evidence was insufficient for the jury to find
beyond a reasonable doubt that she committed the offense in Idaho; (2) the district court’s order
of restitution to the insurance carrier and the Idaho Department of Insurance was an abuse of
discretion; and (3) the prosecutor committed misconduct in closing argument by misrepresenting
the State’s burden of proof on the jurisdictional element. For the reasons set forth below, we
affirm.




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                                                I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       Washburn was charged with insurance fraud, in violation of Idaho Code § 41-293(1)(c),
for filing an insurance claim with an incorrect date of loss. The evidence at trial showed that the
claim arose from an accident that occurred on January 2, 2016, in which Washburn rear-ended
another driver. At the time of the accident, Washburn provided her insurance information to the
other driver. However, Washburn’s previous policy with an insurance carrier (Carrier) had
lapsed on November 7, 2015; therefore, at the time of the accident, Washburn did not have
coverage. On January 4, 2016, Carrier received a phone call from the other driver to report the
accident. On January 29, 2016, Washburn reinstated her policy with Carrier. On February 5,
2016, Washburn called Carrier and reported the accident as occurring on February 1, 2016. On
February 12, 2016, a special investigator with Carrier called Washburn, and Washburn again
reported the accident as occurring on February 1, 2016. Ultimately, Carrier denied Washburn’s
claim when it discovered that she reported an incorrect date of loss and did not have coverage on
the date of the accident.
       At trial, the only contested issue was Washburn’s location during the February 5 and
February 12 phone calls. As an element of the offense, the State had to prove beyond a
reasonable doubt that Washburn was in Idaho when she made the calls to or received the calls
from Carrier. Washburn did not present evidence and conceded during opening and closing
argument that the State proved all elements of the offense except the jurisdictional element. The
jury found Washburn guilty. Thereafter, Washburn moved for a judgment of acquittal arguing
that the State failed to present evidence that Washburn was in Idaho during the phone calls with
Carrier. The district court denied her motion. Subsequently, the State moved for restitution to
reimburse the Idaho Department of Insurance and Carrier for costs and expenses incurred as a
result of Washburn’s insurance fraud. The district court sentenced Washburn to four years with
one and one-half years determinate and retained jurisdiction.        The district court entered a
judgment of conviction and a restitution order as requested by the State. Washburn timely
appeals.




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                                                 II.
                                           ANALYSIS
A.     Judgment of Acquittal
       Washburn argues that the district court erred when it denied her motion for judgment of
acquittal because the State’s evidence was insufficient to support the jury’s guilty verdict. The
State argues that the district court was correct in denying the motion for judgment of acquittal
because there was substantial evidence to establish the jurisdictional element.
       Idaho Criminal Rule 29 provides that when a verdict of guilty is returned, the court, on
motion of the defendant, shall order the entry of a judgment of acquittal if the evidence is
insufficient to sustain a conviction of the offense. The test applied when reviewing the district
court’s ruling on a motion for judgment of acquittal is to determine whether the evidence was
sufficient to sustain a conviction of the crime charged. State v. Fields, 127 Idaho 904, 912-13,
908 P.2d 1211, 1219-20 (1995). When reviewing the sufficiency of the evidence where a
judgment of conviction has been entered upon a jury verdict, the evidence is sufficient to support
the jury’s guilty verdict if there is substantial evidence upon which a reasonable trier of fact
could have found that the prosecution sustained its burden of proving the essential elements of a
crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099,
1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App.
1991). We do not substitute our view for that of the jury as to the credibility of the witnesses, the
weight to be given to the testimony, and the reasonable inferences to be drawn from the
evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684,
701 P.2d 303, 304 (Ct. App. 1985). Moreover, we consider the evidence in the light most
favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121
Idaho at 104, 822 P.2d at 1001. Additionally, “[t]he State’s burden of proving the elements of a
criminal offense may be met through circumstantial evidence.” State v. Willard, 129 Idaho 827,
828, 933 P.2d 116, 117 (Ct. App. 1997). In denying Washburn’s motion for judgment of
acquittal, the district court found that the State presented sufficient evidence to the jury to
establish all of the elements of insurance fraud. We agree.
       At trial, the jury was instructed that in order to find Washburn guilty of insurance fraud,
the State was required to prove, beyond a reasonable doubt that:



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        1. On or between February 5, 2016 and February 12, 2016;
        2. in the state of Idaho;
        3. the defendant, Nora Washburn;
        4. did with the intent to defraud or deceive;
        5. present or cause to be presented to an insurer, a false or altered statement
        material to an insurance transaction.
In addition, the jury was instructed that “any offense committed by use of a telephone . . . may be
deemed to have been committed at the place from which the telephone call . . . was made . . . or
the offense may be deemed to have been committed at the place at which the telephone call . . .
was received.” See I.C. § 41-293(3).
        Washburn argues that the State did not present substantial evidence that Washburn was
physically located in Idaho during the February 5 or February 12 phone calls with Carrier.
However, the State presented substantial evidence upon which the jury could find Washburn
guilty of insurance fraud beyond a reasonable doubt. Washburn’s own statements during the
phone calls with Carrier, which were audio recorded and provided to the jury, were evidence that
she was located in Idaho. During the February 5 call, a Carrier employee asked Washburn:
“What state are you located in?” Washburn responded, “Idaho.” The Carrier investigator also
testified to that fact.
        In addition, ample circumstantial evidence was presented for the jury to consider in
deciding whether or not the calls were placed or received in Idaho. First, the Carrier investigator
testified at trial that Washburn’s address when she signed up for the policy was an Idaho address,
the insurance policy was an Idaho policy, and the first and second claim denial letters were sent
to Washburn at her Idaho address. Second, we agree with the district court’s findings that the
following circumstantial evidence supports the jury’s determination:
        The jury was provided evidence that the defendant, at the time of the accident,
        was driving in Idaho. . . . The defendant was a customer of a local Idaho
        insurance agency prior to January 2nd, 2016, and after January 29th, 2016.
        Among the exhibits submitted in trial were the claim denial letters which were
        sent to the defendant’s Idaho address. The witnesses also testified that it was the
        insurance company’s policy to ask where the person was calling from which was
        consistent with the recording that was admitted. At least one of the statements on
        the recording or one of the recordings was that the defendant indicated she had to
        go to work to e-mail documents to the insurance company.
                The jury could certainly reasonably infer from that that she was at home in
        Idaho when that statement was made on the telephone.



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         Moreover, the defense admitted an exhibit that listed a work number, an Idaho home
address, and an Idaho telephone number. Although the work number that was listed had a 509
area code (commonly known to be an eastern Washington area code), the jury weighed the
evidence and was able to conclude that the communication was made or received within the state
of Idaho based on the direct statement of the defendant, as well as the circumstantial evidence
presented. Viewing this evidence in the light most favorable to the prosecution, a rational trier of
fact could have found beyond a reasonable doubt that Washburn was located in Idaho during the
calls with Carrier. Therefore, the district court did not err in denying Washburn’s motion for
judgment of acquittal.
B.       Restitution
         Washburn argues that the district court abused its discretion by ordering her to pay
restitution because the State did not present sufficient evidence to support its restitution request.
Specifically, Washburn argues that the restitution statutes for insurance fraud do not permit
restitution for prosecution costs or costs to the insurance company for its processing of a
fraudulent claim. The State argues: (1) that this issue was not objected to below, thus it should
not be considered on appeal; and nonetheless (2) the district court acted consistently with
applicable legal standards and did not abuse its discretion.       Generally, this Court will not
consider an alleged error on appeal unless a timely objection to the alleged error was made at
trial. State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989). For an objection to be
preserved for appellate review either the specific grounds for the objection must be clearly stated
or the basis of the objection must be apparent from the context. State v. Sheahan, 139 Idaho 267,
277, 77 P.3d 956, 966 (2003).
         Washburn frames her restitution argument as a challenge to the sufficiency of the State’s
evidence supporting the restitution granted by the district court; however, the basis of
Washburn’s argument is that the applicable statutes, I.C. §§ 41-293(4), 41-295(6), do not
authorize restitution for the types of financial losses claimed. That is a statutory construction
claim.    Thus, her argument must be preserved to be considered by this Court on appeal.
Although trial counsel asked the district court for more time to review the State’s proposed
restitution request during its sentencing argument, the court implicitly denied that request by
ordering restitution. Moreover, trial counsel did not raise an objection when, at the conclusion of
the sentencing hearing, the district court awarded restitution and then asked if either party had

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anything further. Washburn has not claimed, as an issue on appeal, that the district court abused
its discretion by failing to grant more time for review or conducting a restitution hearing.
Washburn did not preserve below the claims of scope and construction of the applicable statutes
now raised on appeal and, thus, we will not consider Washburn’s restitution argument on appeal.
C.     Prosecutorial Misconduct
       Washburn argues that the district court erred when it overruled her objection to the
prosecutor’s closing argument because the prosecutor improperly shifted the State’s burden of
proof on the jurisdiction element of the offense. The State argues that the district court did not
err when it overruled Washburn’s objection and even if it did, the error was harmless.
       Although our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous
objection we determine factually if there was prosecutorial misconduct, then we determine
whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055
(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). Where a
defendant meets his or her initial burden of showing that a violation occurred, the State has the
burden of demonstrating to the appellate court, beyond a reasonable doubt, that the constitutional
violation did not contribute to the jury’s verdict. State v. Perry, 150 Idaho 209, 227, 245 P.3d
961, 979 (2010). A conviction will not be set aside for small errors or defects that have little, if
any, likelihood of having changed the results of the trial. State v. Pecor, 132 Idaho 359, 367-68,
972 P.2d 737, 745-46 (Ct. App. 1998).
       During closing arguments, defense counsel argued that because Washburn’s work phone
number was a 509 number and Kootenai County was near the border of Washington, Washburn
could have been in the state of Washington during the calls with Carrier. In the course of
rebuttal closing, the prosecutor stated:
       [Prosecutor]: So just to follow-up on a couple of points [defense counsel] spoke
                     about yesterday. I’ll start off by comments [defense counsel] made
                     about sticking to the law. That’s what I want to do right now.
                     Let’s stick to the law.
                       First, the Judge read you the Information. It was one count. So the
                       State only needs to prove in one of the two main instances we’re
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                       discussing, either on February 5th or February 12th, that all those
                       elements were met.
                       Now, I want to read to you jury Instruction No. 3, the third
                       paragraph, because I want to stick to the law. It states precisely,
                       “The State must prove the alleged crime beyond a reasonable
                       doubt.” Not any reasonable doubt. Not all reasonable doubt as
                       [defense counsel] stated yesterday. A reasonable doubt.
                       That paragraph continues to say this: “A reasonable doubt is not a
                       mere possibility or imaginary doubt.” Let that sink in for a
                       moment while I read you jury Instruction No. 4 one sentence. “In
                       determining the facts, you may consider only the evidence
                       admitted in this trial.”
                       What evidence suggests it’s outside of Idaho? That Ms. Washburn
                       was outside of Idaho? None. Nothing was admitted that suggests
                       she was outside of Idaho.
       [Defense]:      I’m gonna object, Your Honor. It’s not defense’s burden to prove
                       anything in this case and I object to the State suggesting that we
                       had the burden to prove anything.
       COURT:          Overruled.
       In regard to the prosecutor’s statement, Washburn alleges that, “In other words, the
prosecutor told the jury that the State had met its burden to prove Ms. Washburn was in Idaho
because the defense did not prove she was not in Idaho.” We disagree. The prosecutor’s
statement did not constitute misconduct. Idaho courts have stated that it is not error to point out
the deficiencies in the defense’s argument. See State v. Abdullah, 158 Idaho 386, 445, 348 P.3d
1, 60 (2015). Here, the State was well within the confines of the law. The prosecutor simply
reiterated portions of the jury instructions and applied the evidence, or lack thereof, to those
instructions for the jury to consider in deliberations. The prosecutor did not attempt to shift the
burden to the defendant but only highlighted to the jury that there was no evidence that
Washburn was not in Idaho.      Because Washburn fails to show that the prosecutor committed
misconduct, we need not consider whether it was harmless. Consequently, Washburn’s due
process claim fails.
                                               III.
                                        CONCLUSION
       The district court did not err in denying Washburn’s motion for judgment of acquittal.
Additionally, Washburn failed to preserve her argument that the district court erred in ordering


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restitution. Finally, Washburn has failed to establish that the prosecutor committed misconduct.
Therefore, the district court’s judgment of conviction and order of restitution is affirmed.
       Judge HUSKEY and Judge LORELLO CONCUR.




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