State v. Summer

76 P.3d 963, 139 Idaho 219, 2003 Ida. LEXIS 128
CourtIdaho Supreme Court
DecidedJuly 31, 2003
Docket27818
StatusPublished
Cited by9 cases

This text of 76 P.3d 963 (State v. Summer) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Summer, 76 P.3d 963, 139 Idaho 219, 2003 Ida. LEXIS 128 (Idaho 2003).

Opinions

SCHROEDER, Justice.

D. Scott Summer (Summer) appeals his conviction of theft by deception on the grounds that the indictment against him omitted one of the elements of the crime charged, that the grand jury indictment was flawed because it was brought by the Idaho Attorney General who did not have jurisdiction to do so, and that there was insufficient evidence to present the charge to the trial jury. Summer also challenges whether third parties, i.e. lawyers, engaged in settlement negotiations can present “claims” pursuant to insurance policies. He was acquitted on this charge, however.

[221]*221I.

BACKGROUND

Summer is a lawyer who was admitted to the bar in 1996. He represented Michael White concerning two unrelated auto accidents White suffered on April 4th and 15th of 1996. In the first accident White suffered injuries to which the other driver who was insured by State Farm Mutual Auto Insurance was assigned fault. The second accident involved a truck from Boise Cascade Corporation that tipped over and hit White’s rental car, causing only minor damage to the vehicle and no personal injury other than aggravating White’s previous injuries. Boise Cascade is self-insured and employs Eastern Oregon Claims, Inc., to adjust accident claims.

Summer made an offer to State Farm to settle the first accident. He did not report the second accident or any aggravation of White’s injuries resulting from the second accident to State Farm. State Farm agreed to a settlement, and Summer informed White that his case was closed. However, Summer wrote a letter to Eastern Oregon Claims asking it to settle Boise Cascade’s accident with White for $9,081, claiming as damages many of the medical injuries White had suffered in the first accident. There is evidence that Summer altered some dental reports relating to White’s first accident by whiting out the date of the crash and sent them to Eastern Oregon Claims. Eastern Oregon Claims forwarded the letter to Boise Cascade which rejected the claim. Summer made no more attempts to settle the claim and dropped the matter.

In November of 1997 a deputy attorney general brought Summer’s conduct before a grand jury in Canyon County. The deputy attorney general had not been appointed to act as a special prosecutor in the case. The grand jury returned a three-count indictment, alleging that Summer had committed (1) insurance fraud as to the settlement of the first accident, (2) forgery as to the alteration of the dental records, and (3) insurance fraud and in the alternative grand theft by deception as to the attempt to settle the second accident. Summer moved to dismiss all the charges, which the trial court considered pending an interlocutory appeal on count three. The deputy attorney general obtained a second indictment against Summer, although he still had not yet been formally appointed to act as the prosecutor in the case. Summer moved to dismiss the case on the grounds that the deputy attorney general did not have the authority and jurisdiction to try the case. The district court agreed with Summer, but gave the deputy attorney general ten days to petition for a special appearance pursuant to I.C. § 31-2603(b). The deputy attorney general petitioned, and the district court entered an order allowing the special appearance.

The second indictment alleged Summer had committed (1) insurance fraud, (2) forgery, and (3) grand theft by deception. Before the jury was given instructions, Summer moved to dismiss counts 2 and 3 on the grounds that the indictment failed to allege that he attempted to deprive property “from the owner thereof,” an element of the crime listed in the theft statute I.C. § 18-2403. The State moved to amend the indictment as to grand theft by deception to include the owner of the property, Boise Cascade. Summer challenged the state’s motion. The district court disallowed the State’s amendment. The court dismissed the charge of forgery. After trial on the remaining counts, the jury acquitted Summer of insurance fraud but found him guilty of grand theft by deception. Summer appealed.

II.

THE INDICTMENT WAS SUFFICIENT AND THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION

A. Standard of Review

Whether an indictment or information conforms to the requirements of law is a question subject to free review. State v. Clark, 115 Idaho 1056, 1057, 772 P.2d 263, 264 (Ct.App.1989). The issue is whether the information in the indictment is sufficient to fairly inform the defendant of the charges against him and whether it allows the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. [222]*222State v. Robran, 119 Idaho 285, 805 P.2d 491 (Ct.App.1991).

B. Sufficiency of the Indictment

The theft statute under which Summer was charged requires that he attempt to deprive “the owner thereof’ of its property. The indictment identified Eastern Oregon Claims, Inc. and not Boise Caseade as the owner of the property that Summer attempted to take. Summer maintains that the indictment was insufficient to charge a crime and should have been dismissed by the district court.

The State maintains that Summer is es-topped from raising the issue of the sufficiency of the indictment as to theft by deception since he objected to the amendment of the indictment to cure any deficiency. Further, the district court found the indictment sufficient in that exact specificity as to the owner was not necessary—the allegation that Summer wrongfully intended to deprive another of property, satisfied the requirement that he intended to take the “property from the owner thereof.”

Idaho Code section 18-2403(1), (2)(a), states:

Theft.—(1) A person steals property and commits theft when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.
(2) Theft includes a wrongful taking, obtaining or withholding of another’s property, with intent prescribed in subsection (1) of this section, committed in any of the following ways:
(a) By deception obtains or exerts control over property of the owner....

The indictment stated:

That, on or about November 6,1996, in the County of Canyon, State of Idaho, the defendant, D. SCOTT SUMMER, did, with the intent to deprive another of property attempt to deceive another for purpose of obtaining $9,081.00, lawful money of the United States, to wit: the defendant, D. SCOTT SUMMER, while attempting to settle a claim, wrongfully attempted to deceive Eastern Oregon Claims Service to settle a claim for $9,081.00 well knowing that the statements he was making in support of his demand for payment were false and misleading.

The district judge made the following analysis of the objection to the sufficiency of the indictment:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
76 P.3d 963, 139 Idaho 219, 2003 Ida. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-summer-idaho-2003.