State v. Barham

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47241

STATE OF IDAHO, )
) Filed: May 13, 2020
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
)
ZOE RENEE BARHAM, )
)
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

Order for 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; Andrew V. Wake, Deputy
Attorney General, Boise, for respondent.
________________________________________________

LORELLO, Judge
Zoe Renee Barham appeals from an order for restitution. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Barham purchased an insurance policy for her vehicle after it was involved in an accident
in the parking lot of a local business. When the owner of the other vehicle filed a claim against
the policy, Barham told her insurer that she had purchased the policy before the accident.
Barham’s insurer denied the other vehicle owner’s claim after an internal investigation revealed
that Barham had purchased the policy after the accident. Barham’s insurer then notified the
Idaho Department of Insurance.

1
The State charged Barham with insurance fraud. I.C. § 41-293(1)(c). After a jury found
Barham guilty of the offense, the State sought a restitution order under I.C. § 41-293(4). The
State’s restitution request included $2,400.60 for Barham’s insurer arising from travel and
investigation costs. Barham objected to that amount, arguing that restitution for travel and
investigation costs was not authorized by statute. The district court rejected Barham’s argument
and awarded her insurer the full $2,400.60. Barham appeals.
II.
STANDARD OF REVIEW
The determination of the amount of restitution, which includes the issue of causation, is a
question of fact for the trial court. State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401
(2011); State v. Hamilton, 129 Idaho 938, 943, 935 P.2d 201, 206 (Ct. App. 1997). The district
court’s factual findings with regard to restitution will not be disturbed on appeal if supported by
substantial evidence. Corbus, 150 Idaho at 602, 249 P.3d at 401; State v. Lombard, 149 Idaho
819, 822, 242 P.3d 189, 192 (Ct. App. 2010).
This Court exercises free review over the application and construction of statutes. State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003).
III.
ANALYSIS
Barham argues the district court erred in ordering her to pay $144.66 in restitution to her
insurer for investigation costs arising from six hours of time an employee spent investigating the
claim at issue in this case. 1 Specifically, Barham asserts that a restitution award for such
expenses is not authorized under I.C. § 41-293(4). The State responds that the district court
correctly concluded that an insurer’s investigative costs constitute a “financial loss” for which

1
Although Barham argued before the district court that she could not be ordered to pay
restitution for either her insurer’s travel expenses or investigation costs, Barham’s appellate brief
only challenges the restitution for her insurer’s investigation costs. Thus, Barham has waived
any argument that the district court erred in ordering her to pay restitution to her insurer for
travel expenses. See State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (holding that
a party waives an issue on appeal if either authority or argument is lacking).

2
I.C. § 41-293(4) authorizes restitution. We hold that the district court’s restitution award for
investigative costs was appropriate.
Where the language of a statute is plain and unambiguous, this Court must give effect to
the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho
654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct.
App. 2000). The language of the statute is to be given its plain, obvious, and rational meaning.
Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is
no occasion for the court to resort to legislative history or rules of statutory interpretation.
Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction
because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to
that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). To ascertain
such intent, not only must the literal words of the statute be examined, but also the context of
those words, the public policy behind the statute and its legislative history. Id. It is incumbent
upon a court to give an ambiguous statute an interpretation which will not render it a nullity. Id.
Constructions of an ambiguous statute that would lead to an absurd result are disfavored. State v.
Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004).
Idaho Code Section 41-293(4) authorizes trial courts to order those convicted of
insurance fraud to pay restitution and provides:
Any violator of this section is guilty of a felony and shall be subject to a
term of imprisonment not to exceed fifteen (15) years, or a fine not to exceed
fifteen thousand dollars ($15,000), or both and shall be ordered to make
restitution to the insurer or any other person for any financial loss sustained as a
result of a violation of this section. Each instance of violation may be considered
a separate offense.
(Emphasis added.)
The term “financial loss” has a nonexhaustive statutory definition. Within the context of
I.C. § 41-293(4), financial loss “includes, but is not limited to, loss of earnings, out-of-pocket
and other expenses, repair and replacement costs and claims payments.” I.C. § 41-291(8).
The district court found that Barham’s criminal conduct was the actual and proximate
cause of the $144.66 in wages that Barham’s insurer paid one of its employees for the six hours
he spent investigating the claim at issue in this case. Based upon this finding, the district court
concluded that the investigation costs fell within the statutory definition of financial loss.

3
Consequently, the district court concluded that Barham’s insurer was entitled to restitution for its
investigation costs. Barham argues that the district court erred by failing to recognize that her
insurer would have paid its employee regardless of the particular claim being investigated. Thus,
according to Barham, the employee’s compensation was not “a result of” her criminal conduct
and, therefore, does not constitute financial loss within the context of I.C. § 41-293(4). 2 We
disagree.
We rejected an argument similar to Barham’s in State v. Olpin, 140 Idaho 377, 93 P.3d
708 (Ct. App. 2004). Olpin was convicted of grand theft for stealing funds from her employer.
The extent of Olpin’s theft was discovered after four of the victim’s employees researched the
exact amount of deposits missing from the victim’s bank account. After a restitution hearing, the
trial court entered a restitution order that, among other things, required Olpin to pay restitution to
the victim for the wages paid to its employees for the time they spent researching the missing
deposits. On appeal, Olpin argued that the trial court erred in ordering her to pay restitution for
the employees’ wages because the applicable restitution statute, I.C. § 19-5304, did not authorize
it. This Court held that I.C. § 19-5304(2) authorized the trial court to order restitution for any
“economic loss” the victim actually suffered. Olpin, 140 Idaho at 378, 93 P.3d at 709. Under
I.C. § 19-5304:
“Economic loss” includes, but is not limited to, the value of property
taken, destroyed, broken, or otherwise harmed, lost wages, and direct
out-of-pocket losses or expenses, such as medical expenses resulting from the
criminal conduct, but does not include less tangible damage such as pain and
suffering, wrongful death, or emotional distress.
I.C. § 19-5304(1)(a) (emphasis added).
In Olpin, this Court reasoned that the loss of productivity the victim suffered by having to
task its employees with researching the extent of Olpin’s theft when they could have completed
other tasks was closely analogous to “lost wages.” The wages the employees received for

2
In her appellate brief, Barham also argued that her criminal conduct was not the actual
cause of the employee’s wages because her insurer would have paid the employee anyway.
Because I.C. § 41-293(4) authorizes a restitution award only for a financial loss sustained as a
result of the insurance fraud for which the defendant is convicted, Barham’s causation argument
is essentially the same as her argument that the employee’s wages do not constitute financial
loss.

4
investigating Olpin’s criminal conduct were “direct out-of-pocket expenses,” which were
expressly identified as falling within the statutory definition of economic loss. Olpin, 140 Idaho
at 379, 93 P.3d at 710. In light of the broad statutory definition of economic loss and the
deterrent and rehabilitative purposes of victim restitution, we held that it was not error to order
restitution for the employees’ wages because the victim suffered economic loss as contemplated
by I.C. § 19-5304 when the employees were diverted from their normal duties to investigate the
missing deposits. Olpin, 140 Idaho at 379, 93 P.3d at 710.
The similarity between the statutes applicable in this case and those at issue in Olpin is
such that Olpin guides our analysis. Idaho Code Section 41-293(4) required the district court to
order restitution to Barham’s insurer for any “financial loss sustained as a result of” Barham’s
criminal conduct. Similar to the statutory definition of economic loss at issue in Olpin, financial
loss has a broad statutory definition, which includes, but is not limited to, out-of-pocket and
other expenses. I.C. § 41-291(8). There is no meaningful distinction between the wages at issue
in Olpin and those in this case that would lead us to a different conclusion than in
Olpin--specifically, wages paid for investigative costs constitute out-of-pocket expenses. That
the employee’s primary job duty in this case was the investigation of claims is immaterial. But
for Barham’s criminal conduct, the defrauded insurer could have tasked its employee with the
investigation of other claims. In light of the broad statutory definition of financial loss and the
deterrent and rehabilitative purposes of victim restitution, we conclude that the wages Barham’s
insurer paid its employee to investigate the insurance claim were out-of-pocket expenses that
resulted from Barham’s criminal conduct. Consequently, Barham has failed to show that the
district court erred in ordering her to pay restitution for those expenses to her insurer.
IV.
CONCLUSION
Barham has failed to show that the district court ordered her to pay restitution for
amounts that are not authorized by statute. Thus, Barham has failed to show that the district
court erred in ordering her to pay restitution. Barham’s order for restitution is affirmed.
Judge GRATTON and Judge BRAILSFORD, CONCUR.

5