State v. Fullbright

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50484

STATE OF IDAHO, )
) Filed: September 17, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
KAREN FULLBRIGHT, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Patrick J. Miller, District Judge.

Order for restitution, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Jenny C. Swinford, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Amy J. Lavin, Deputy Attorney General,
Boise, for respondent.
________________________________________________
TRIBE, Judge
Karen Fullbright appeals from an order for restitution. Fullbright asserts the district court
abused its discretion by ordering $1,400 in restitution. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Following a trial, Fullbright was convicted of two counts of felony grand theft for taking
and using K.N.’s (Fullbright’s ex-husband) Wells Fargo debit card to withdraw $1,400 from the
Wells Fargo account. The district court sentenced Fullbright to a unified sentence of eight years,
with two years determinate, but suspended the sentence and placed her on probation. Fullbright

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appealed. This Court affirmed Fullbright’s judgment of conviction and sentence in an unpublished
opinion.1
While the appeal was pending, the State moved for a restitution order. At the conclusion
of the restitution hearing, the district court found that the State presented sufficient evidence that
Fullbright withdrew $1,400 in cash from K.N.’s Wells Fargo account and that those funds were
never returned nor were the transactions canceled. The district court also found that Wells Fargo
was the victim pursuant to Idaho Code § 19-5304(1)(e)(i), as it dispersed the cash to Fullbright.
The district court rejected Fullbright’s argument that she did not have the ability to pay the
restitution. The district court issued a final restitution order in the amount of $1,400. Fullbright
timely appeals from the district court’s restitution order.
II.
STANDARD OF REVIEW
When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
III.
ANALYSIS
A. Wells Fargo is a Victim
Fullbright argues that the district court did not act consistently with the applicable legal
standards because the State failed to present sufficient evidence that Wells Fargo qualified as a
victim under I.C. § 19-5304(1)(e). Fullbright contends that there is no evidence to support the
finding that she took Wells Fargo’s money and that the evidence showed that K.N., not Wells
Fargo, was the directly injured victim. Fullbright argues that Wells Fargo did not qualify as a
direct victim under I.C. § 19-5304(1)(e)(i) because it did not suffer an “economic loss as a result”
of Fullbright’s criminal conduct. The State argues that the district court properly determined that
Wells Fargo qualified as a victim. We agree that Wells Fargo is a victim.

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See State v. Fullbright, Docket No. 50080 (Ct. App. Aug. 31, 2023).

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For purposes of the restitution statute, the term “victim” means, in relevant part: “a person
or entity, who suffers economic loss or injury as the result of the defendant’s criminal conduct.”
I.C. § 19-5304(1)(e)(i). At the restitution hearing, the State presented a letter from Wells Fargo
containing a list of transactions made with K.N.’s debit card, including two withdrawals of $700
made by Fullbright directly from Wells Fargo. Fullbright argues that Wells Fargo’s claim letter
does not indicate that Wells Fargo gave its own money to Fullbright. Rather, the letter indicates
only that K.N. filed a claim for two cash withdrawals for $700 and that Wells Fargo was requesting
that amount in restitution.
The district court determined that Wells Fargo qualified as a victim under I.C. § 19-
5304(1)(e)(i) because “Wells Fargo dispersed cash to [Fullbright] twice through an ATM in the
amount of $700 each for a total of $1,400.” It also found that Wells Fargo “suffered the loss”
when Fullbright made the two $700 ATM withdrawals. These amounts are confirmed by the letter
from Wells Fargo that indicated that it had suffered an economic loss and was requesting restitution
for that loss. The district court found that there was substantial evidence in the record to support
the finding that the money withdrawn by Fullbright could not have been canceled like a fraudulent
credit card charge, making restitution necessary because it was withdrawn as cash and Wells Fargo
never sought reimbursement of the cash from K.N., making Wells Fargo a victim.
Fullbright also argues that the State did not present sufficient evidence that Wells Fargo
was a “victim” under I.C. § 19-5304(1)(e)(iv) and that the record is “devoid” of any evidence to
show Wells Fargo suffered economic loss because it “made payments” to the victim “pursuant to
a contract.” State v. Cheeney, 144 Idaho 294, 299, 160 P.3d 451, 456 (Ct. App. 2007). Fullbright
argues that the State offered no testimony from K.N. or a Wells Fargo employee on whether Wells
Fargo reimbursed K.N. for the two cash withdrawals pursuant to a contract. The State argues that
Cheeney is not controlling in this case because I.C. § 19-5304(1)(e)(iv) has been amended since
Cheeney to include a second option besides a contractual relationship. The statute was amended
in 2008 and reads:
A person or entity who suffers economic loss because such person or entity has
made payments to or on behalf of a directly injured victim pursuant to a contract
including, but not limited to, an insurance contract, or payments to or on behalf of
a directly injured victim to pay or settle a claim or claims against such person or
entity in tort or pursuant to statute and arising from the crime.

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I.C. § 19-5304(1)(e)(iv) (emphasis added). In reviewing the record, it is not clear that the district
court based its decision, in part, on I.C. § 19-5304(1)(e)(iv). However, because the district court
concluded that Wells Fargo was a victim under I.C. § 19-5304(1)(e)(i), it is unnecessary to
determine whether the district court erred in finding that Wells Fargo was a victim pursuant to I.C.
§ 19-5304(1)(e)(iv). For the reasons stated above, Fullbright did not meet her burden in showing
the district court abused its discretion in finding Wells Fargo was a victim.
B. Ability to Pay
Fullbright next claims that the district court did not “exercise reason” by ordering
restitution because “it should have given more weight to her inability to pay.” In support of her
claim, Fullbright points to her testimony that she was unable to work due to a back injury, her sole
sources of income were social security and food stamps, and she also had significant debt and bills.
The State responds that the restitution award was proper because the district court recognized the
distinction between immediate and foreseeable ability to pay and the “district court correctly
weighed all [the] factors before issuing its restitution order.”
The decision whether to order restitution, and in what amount, is within the discretion of a
trial court, guided by consideration of the factors set forth in I.C. § 19-5304(7) and by the policy
favoring full compensation to crime victims who suffer economic loss. State v. Torrez, 156 Idaho
118, 119, 320 P.3d 1277, 1278 (Ct. App. 2014); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804,
806 (Ct. App. 1989). Although a court should consider the needs and earning ability of the
defendant, the immediate inability to pay restitution is not, in and of itself, a reason to deny a
restitution request. I.C. § 19-5304(7); see also State v. Olpin, 140 Idaho 377, 379, 93 P.3d 708,
710 (Ct. App. 2004) (explaining that inability to pay neither precludes nor limits a restitution award
but is only one factor to consider when making a discretionary restitution determination). Unless
the trial court determines that an order of restitution would be inappropriate or undesirable, it shall
order a defendant found guilty of any crime which results in an economic loss to the victim to
make restitution to the victim. I.C. § 19-5304(2).
The record reflects that the district court considered that Fullbright might not have “the
immediate ability to pay” and perhaps “has the immediate inability to pay,” considered the factors
set forth in I.C. § 19-5304(7) and determined that Fullbright’s “immediate inability to pay
restitution” was not a reason to not order restitution. Fullbright testified at the restitution hearing

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that she had a back injury that limited her ability to work and might require surgery, the district
court found that there was “no evidence that the injury is other than temporary.” Additionally, the
district court found that Fullbright was “able-bodied and employable” and would be able to pay
the $1,400 restitution “even if it has to be paid over time.” It is in the district court’s discretion to
determine how much weight to place on Fullbright’s ability to pay the restitution, and the
foreseeable ability to pay is not the only factor that a court can rely on to make an order of
restitution. “The exercise of discretion must encompass consideration of the amount of economic
loss sustained by the victim as a result of the offense, the financial resources, needs and earning
ability of the defendant, and other factors deemed appropriate by the court.” State v. Hamilton,
129 Idaho 938, 942, 935 P.2d 201, 205 (Ct. App. 1997). Because the district court correctly
perceived the decision to order restitution as one of discretion, acted within the boundaries of that
discretion in accordance with the applicable legal standards and reached its determination through
an exercise of reason, Fullbright has failed to show that the district court abused its discretion.
IV.
CONCLUSION
Fullbright has failed to show an abuse of discretion in the district court’s restitution order.
Accordingly, the district court’s restitution award of $1,400 to Wells Fargo is affirmed.
Chief Judge GRATTON and Judge HUSKEY, CONCUR.

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