IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38108
STATE OF IDAHO, ) 2011 Opinion No. 64
)
Plaintiff-Appellant-Cross Respondent, ) Filed: November 2, 2011
)
v. ) Stephen W. Kenyon, Clerk
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MARY SUMMERS, )
)
Defendant-Respondent-Cross Appellant.)
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael R. McLaughlin, District Judge.
Order of the district court concluding that attempt to obtain a controlled substance
by fraud is a misdemeanor, reversed; order denying motions to dismiss for
prosecutorial misconduct, affirmed.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for appellant-cross respondent.
Holland & Hart, LLP, Boise, Scott E. Randolph and Ammon R. Hansen for
respondent-cross appellant.
________________________________________________
SCHWARTZMAN, Judge Pro Tem
The State appeals the district court’s order reducing to a misdemeanor Mary Summers’
charge of attempt to obtain a controlled substance by fraud. Summers cross-appeals the district
court’s denial of her motions to dismiss for prosecutorial misconduct. We affirm in part and
reverse in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Summers with the attempt to obtain a controlled substance by fraud,
by altering a prescription for 40 hydrocodone to 240 hydrocodone, a violation of Idaho Code
§§ 37-2734(a)(3) and 18-306. Summers moved to dismiss and/or remand to the magistrate
division, claiming the charged crime was a misdemeanor, not a felony. The district court
initially denied the motion, finding the charge to be a felony. Summers moved for
1
reconsideration and the district court granted the motion, concluding that I.C. § 18-306 was
ambiguous and should be resolved in a manner favorable to the defendant. The case was then
remanded to the magistrate division as a misdemeanor crime.
The State timely appealed. Summers cross-appealed, contending that the district court’s
decisions denying her two motions to dismiss for prosecutorial misconduct were erroneous. She
alleges that at the time set for her preliminary hearing, the prosecutor misrepresented to the court
that a material witness could not be subpoenaed. Summers also asserts that the prosecutor then
coerced her into agreeing to a continuance of the hearing by stating that if she did not agree to
one and obtained a dismissal, he would refile the charge and request a warrant for her arrest.
Summers claims that the prosecutor’s conduct violated her due process rights and seeks
dismissal of the charge against her.
II.
DISCUSSION
A. The Attempt to Obtain a Controlled Substance by Fraud
The crime of obtaining a controlled substance by fraud, misrepresentation, forgery,
deception, or subterfuge is a felony, punishable upon conviction by imprisonment for not more
than four years, or by fine of not more than $30,000, or both. I.C. § 37-2734(a)(3) and (b).
Because Summers was charged with an attempt and not a completed offense, her potential
sentence is governed by I.C. § 18-306. The State claims the attempt to obtain a controlled
substance by fraud remains a felony under the plain meaning of I.C. § 18-306(5) because the
completed crime is punishable by both imprisonment (four years) and a fine ($30,000).
Summers argues that I.C. § 18-306(3), making the offense a misdemeanor, should be applied
because the completed crime is punishable by imprisonment for less than five years and the rule
of lenity requires an ambiguous statute to be interpreted in favor of the defendant. 1
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). Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
1
Summers initially contends the State waived any error by failing to preserve this issue for
appeal. We find this argument to be without merit. The motion to remand the case to the
magistrate division as a misdemeanor was made by the defense and specifically ruled upon and
decided by the district court. As such, it is reviewable upon appeal. See State v. DuValt, 131
Idaho 550, 553, 961 P.2d 641, 644 (1998).
2
engaging in statutory construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688
(1999); 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, it has the duty to ascertain the legislative intent and
give effect to that intent. Rhode, 133 Idaho at 462, 988 P.2d at 688. To ascertain the intent of
the legislature, 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 a statute an interpretation which will not render it a nullity. State v. Beard,
135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). Constructions of a statute that would
lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525
(2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).
The plain language of I.C. § 18-306 dictates that Summers’ offense of attempting to
obtain a prescription drug by fraud remains a felony. Attempts are governed by I.C. § 18-306,
which states:
(1) If the offense so attempted is punishable by imprisonment in the state
prison for life, or by death, the person guilty of such attempt is punishable by
imprisonment in the state prison for a term not exceeding fifteen (15) years.
(2) If the offense so attempted is punishable by imprisonment in the state
prison for five (5) years or more but for less than life imprisonment, or by
imprisonment in the county jail, the person guilty of such attempt is punishable by
imprisonment in the state prison, or in the county jail, as the case may be, for a
term not exceeding one-half (1/2) the longest term of imprisonment prescribed
upon a conviction of the offense so attempted.
(3) If the offense so attempted is punishable by imprisonment in the state
prison for any term less than five (5) years, the person guilty of such attempt is
punishable by imprisonment in the county jail for not more than one (1) year.
(4) If the offense so attempted is punishable by a fine, the offender
convicted of such attempt is punishable by a fine not exceeding one-half (1/2) the
largest fine which may be imposed upon a conviction of the offense so attempted.
(5) If the offense so attempted is punishable by imprisonment and by a
fine, the offender convicted of such attempt may be punished by both
imprisonment and fine, not exceeding one-half (1/2) the longest term of
imprisonment and one-half (1/2) the largest fine which may be imposed upon a
conviction for the offense so attempted.
3
I.C. § 18-306 (emphasis added). Obtaining a controlled substance by fraud, a violation of I.C.
§ 37-2734(a)(3), is deemed “a felony” and is punishable by imprisonment for not more than
four (4) years, or a fine of not more than $30,000, or both. I.C. § 37-2734(b). Because the
offense is specifically punishable by both imprisonment in the state prison and a fine, the offense
falls squarely within the ambit of I.C. § 18-306(5).
By a parity of reasoning, the plain language of the statute also renders I.C. § 18-306(3)
inapplicable. Although the maximum term of imprisonment for the completed crime is “less
than five (5) years,” I.C. § 18-306(3) cannot be applied because the offense so attempted is also
subject to a specific fine of $30,000. 2 The language in I.C. § 18-306(3) and (5) was drafted in
1887, and reenacted in 1972. See ID. REV. STAT. § 7235 (1887); 1972 Idaho Sess. Laws, ch. 336,
§ 1. The legislature clearly distinguished between offenses punishable by imprisonment alone
and those punishable by both imprisonment and a fine. While the number of applicable offenses
that fall within I.C. § 18-306(3) may have decreased since 1887, there are still several that
arguably come within its ambit. 3
B. Prosecutorial Misconduct
As noted earlier, the district court also denied two motions to dismiss on the basis of
prosecutorial misconduct because the court found that the misstatements did not rise to the level
of bad faith and the defendant failed to show prejudice to her defense. Summers claims the
prosecutorial misconduct violated her due process rights. Where a defendant claims that her
right to due process was violated, we defer to the trial court’s findings of fact, if supported by
substantial evidence. State v. Smith, 135 Idaho 712, 720, 23 P.3d 786, 794 (Ct. App. 2001).
However, we freely review the application of constitutional principles to those facts found. Id.
At the time set for a preliminary hearing the deputy prosecuting attorney requested a
continuance. When asked to state his reasons, the prosecutor replied that his primary witness, a
2
Because this felony-type fine is built directly into the criminal statute itself, we need not
decide what effect, if any, the enactment of I.C. § 18-112A, which authorizes a fine of up to
$50,000 if the felony offense was not previously punishable by a fine, would have on our
analysis. See also I.C. § 18-113, prescribing a $1,000 maximum fine for all misdemeanors
where no other fine is provided.
3
See, e.g., I.C. §§ 18-1601(2), compounding felony; 18-2312, aiding and abetting election
offenses; and 18-6601, adultery. Interestingly enough, all of these offenses are punishable at
sentencing as either a misdemeanor in the county jail or as a felony in the state prison.
4
doctor, was unavailable to testify. He elaborated that the doctor was out of town and the State
was unable to subpoena him. He also stated he needed a continuance to obtain a transcript from
an earlier hearing. 4
Summers later discovered that the doctor had in fact been subpoenaed, but had been
released therefrom by the prosecutor so that he could attend a previously scheduled out-of-state
medical conference. Summers subsequently filed a motion to dismiss on the basis of this new
information. No evidentiary hearing was held or requested by either party. The State did not
contest the factual scenario regarding the doctor’s unavailability, but never admitted to having
made an intentional misrepresentation to the court. Summers contends the statement was a bad
faith misrepresentation and constitutes prosecutorial misconduct.
The district court found that it was “unlikely that these ‘misstatements’ rose to the level
of bad faith.” The district court further stated that there was “insufficient evidence in the record
to establish that the State’s statements at the preliminary hearing were made in bad faith.” The
use of the word “misstatement,” is illustrative of this finding. We will defer to the district court
in this regard.
Summers next argues that the prosecutor coerced her into agreeing to a continuance of
the preliminary hearing, claiming that she only acquiesced because the prosecutor threatened to
obtain a warrant for her arrest if the case was dismissed. She contends that the misconduct
amounted to a violation of her due process rights. The filing of a subsequent criminal action
following the dismissal of the original criminal action after a preliminary hearing is not a per se
violation of due process. Stockwell v. State, 98 Idaho 797, 805, 573 P.2d 116, 124 (1977); State
v. Davis, 141 Idaho 828, 842 118 P.3d 160, 174 (Ct. App. 2005). A prosecutor has the right to
simply refile a complaint. State v. Ruiz, 106 Idaho 336, 337, 678 P.2d 1109, 1110 (1984).
However, dismissal and refiling of a criminal complaint by the prosecutor, when done for the
purpose of harassment or delay, can violate a defendant’s right to due process. State v. Bacon,
117 Idaho 679, 683, 791 P.2d 429, 433 (1990); Davis, 141 Idaho at 842, 118 P.3d at 174. Before
a due process violation can be found, the defendant must show that the delay caused substantial
prejudice to the defendant’s right to a fair trial and that the delay was a deliberate device to gain
4
The prosecutor failed to file a request for the transcript until the day before the scheduled
preliminary hearing.
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an advantage over the accused. State v. Kruse, 100 Idaho 877, 879, 606 P.2d 981, 983 (1980);
Davis, 141 Idaho at 842 118 P.3d at 174.
In the present case, Summers has failed to make any showing that the delay impaired her
ability to receive a fair trial and was a deliberate device to gain an advantage over her. Summers
only claims damage to her career and personal suffering, a result of the charge and the anxiety
that accompany it. We agree with the district court that these types of prejudices are not
violations of Summers’ due process rights. 5
III.
CONCLUSION
The plain wording of I.C. § 18-306 is not ambiguous and should be read in a manner to
give effect to all its sections. Thus, I.C. § 18-306(5) applies to attempts to obtain a controlled
substance by fraud because the completed offense is punishable by both a fine and imprisonment
in the state prison. As such, the district court’s order to remand to the magistrate division must
be reversed. Summers has failed to demonstrate that her due process rights were violated by the
prosecutor’s conduct. Therefore, the district court’s order denying the motions to dismiss on the
basis of prosecutorial misconduct is affirmed.
Judge LANSING and Judge MELANSON CONCUR.
5
Although this Court does not find a due process violation, we certainly do not condone
the prosecutor’s conduct during the course of these proceedings.
6