Opinion
Docket No. 26875.
Filed February 27, 2003.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. George D. Carey, District Judge.
Orders of the district court denying motions for acquittal, suppression, and disqualification of the Attorney General, affirmed; order of the district court dismissing the case without prejudice, affirmed.
Peterson Law Office, Boise; Spence, Moriarity Schuster, Jackson, Wyoming; Andrew Parnes, Ketchum, for appellant. Andrew Parnes argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
A jury found Richard W. Hoyle not guilty on charges of soliciting the destruction of evidence and solicitation of grand theft. The jury, however, could not reach a verdict on certain predicate acts relating to Count B, the remaining charge of racketeering. On the date set for retrial, the district court dismissed the case without prejudice. Hoyle appeals.
I. FACTUAL AND PROCEDURAL SUMMARY
Hoyle had owned and operated a successful insurance agency, Hoyle Associates Insurance, Inc. (Hoyle Insurance), in Boise since 1979. Effective January 1, 1996, he sold Hoyle Insurance to First Security Insurance (FSI), which continued to operate the agency under the Hoyle Insurance name. Following the sale, FSI employed Hoyle as a vice president and sales manager. Prior to and after the sale, Hoyle directed the accounting supervisor and a marketing representative to make certain accounting entries regarding customer accounts, and to prepare and submit certain insurance applications, including loss run reports.
On June 12, 1997, Hoyle was indicted on eight felony counts, including Count B, which charged Hoyle with racketeering, I.C. § 18-7804, predicated upon 165 alleged criminal acts. Through amendments to the indictment and elimination at trial, the jury was left to consider only Counts A, B, and E and only thirty alleged predicate acts underlying Count B.
On June 11, 1999, the jury returned a unanimous verdict of not guilty on Counts A and E, and for twenty-three of the Count B predicate acts. The jury, however, could not agree as to Hoyle's guilt on Count B or on the remaining seven predicate acts (Acts), and Hoyle moved for a mistrial.
The district court dismissed and entered a judgment of acquittal on Counts A and E, and dismissed the twenty-three Count B predicate acts for which the jury had returned a not guilty verdict. Hoyle subsequently filed a motion for a judgment of acquittal on Count B and the remaining Acts, and the state filed a motion for a new trial on Count B. The district court considered these opposing motions and, on August 11, 1999, ruled that the jury had not rendered a verdict on Count B or the seven Acts, denied Hoyle's motion for judgment of acquittal, and granted the state's motion for a new trial.
In an August 17, 2000, hearing in advance of the new trial, the state informed the court that it would not proceed to retrial on Count B because the state had filed an indictment in a second prosecution, Case No. H0000795 (Case 795), charging Hoyle with five of the seven Acts as independent counts, but not charging him with racketeering. The state indicated that it would move to amend the indictment in Case 795 and if granted, would move to dismiss the instant case. Hoyle then moved for dismissal.
On the date of retrial, September 11, 2000, the state again informed the district court that it would not proceed with the instant case. Hoyle indicated that he was ready to proceed to trial and that, if the state was not going to proceed, he would renew his motion for judgment of acquittal. The state responded that it did not intend to move to dismiss the instant case, but rather to consolidate the two cases. The district court then dismissed the instant case without prejudice. Hoyle timely appeals.
II. ANALYSIS
A. Mootness
Given that the instant case against Hoyle has been dismissed and will not be retried, we consider whether mootness bars Hoyle's arguments that the Attorney General lacked the statutory authority to prosecute him and that the district court erred in denying his suppression motions and his motion for judgment of acquittal. To overcome mootness, an issue must constitute an "actual or justiciable controversy." Idaho Sch. for Equal Educ. Opportunity v. Idaho State Bd. of Educ., 128 Idaho 276, 281-82, 912 P.2d 644, 649-50 (1996). To be justiciable, the controversy must be real and substantial, and must be capable of being concluded through the Court's decree of specific relief. Id. Furthermore, the controversy must be live at the time of the court's hearing. Id. at 282, 912 P.2d at 650.
Hoyle also asserts that a retrial on Count B, or its predicate acts, exposes him to double jeopardy in violation of constitutional protections. Count B has been dismissed and will not be retried; thus, this issue as to Count B, predicated on the remaining Acts, is moot. Idaho Sch. for Equal Educ. Opportunity v. Idaho State Bd. of Educ., 128 Idaho 276, 281-82, 912 P.2d 644, 649-50 (1996). His challenge regarding the denial of his attempted disqualification of the Deputy Attorney General is similarly moot where that individual left the Attorney General's employment on or about March 8, 1999. Id. Hoyle also argues that Idaho's "double jeopardy" statute, I.C. § 18-301, protects him against subsequent prosecution, but that statute is inapplicable because it was repealed on February 13, 1995, several months before the earliest conduct alleged against Hoyle. See State v. Colwell, 127 Idaho 854, 856 n. 1, 908 P.2d 156, 158 n. 1 (Ct.App. 1995).
Idaho jurisprudence parallels that of the United States Supreme Court in identifying that the mootness doctrine applies not only when an issue is dead, but also when the appellant lacks a legally cognizable interest in the outcome because even a favorable decision would not result in relief. Murphy v. Hunt, 455 U.S. 478, 481-82 (1982); Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989 (1991). Thus, mootness precludes appellate review on an issue that presents no justiciable controversy and where a judicial determination would have no practical effect on the outcome. Idaho Sch. for Equal Educ. Opportunity, 128 Idaho at 281, 912 P.2d at 649.
An exception to mootness exists where the challenged conduct is of such a limited duration as to prohibit full litigation prior to the conduct's termination. Weinstein v. Bradford, 423 U.S. 147, 149 (1975). Moreover, because the conduct's short duration works to preclude judicial review, the conduct reasonably could be expected to be imposed repeatedly upon the same complainant. Id. For these reasons, the "capable of repetition, yet evading review" exception operates to limit the application of the mootness doctrine. Mallery v. Lewis, 106 Idaho 227, 234, 678 P.2d 19, 26 (1983). A second exception looks to the justiciability of an issue that, although now technically dead, nevertheless raises significant concerns bearing upon interests beyond that of the individual challenger and impacting upon a wider public. Idaho Sch. for Equal Educ. Opportunity, 128 Idaho at 284, 912 P.2d at 652; Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989 (1991); see, e.g., Dick v. Geist, 107 Idaho 931, 933-35, 693 P.2d 1133, 1135-37 (Ct.App. 1985) (ruling on enforceability of challenged, but expired, restrictive physician employment covenants due to public detriment caused by loss of medical care). A third exception to the mootness doctrine applies when an otherwise dead issue persists in its impact upon the challenger. Adams v. Killeen, 115 Idaho 1034, 1035, 772 P.2d 241, 242 (Ct.App. 1989). Under this exception, the continuing impact results from the challenged conduct. State v. Butler, 129 Idaho 899, 900-01, 935 P.2d 162, 163-64 (1997); State v. Alldredge, 96 Idaho 7, 8, 523 P.2d 824, 825 (1974); Adams, 115 Idaho at 1035, 772 P.2d at 242. Once that impact ceases to exist, however, the collateral legal consequences exception no longer applies because the challenger has "no present need" for a judicial determination. See Russell v. Fortney, 111 Idaho 181, 183, 722 P.2d 490, 492 (Ct.App. 1986).
1. Prosecutorial authority challenge
Hoyle argues that the Attorney General acted outside his statutory authority by initiating his investigation of Hoyle and prosecuting him independently of the Ada County Prosecuting Attorney (Prosecutor). Hoyle asserts that this issue is not moot because the Attorney General continues to prosecute him in Case 795. The Attorney General's conduct in that second case, however, is not properly before this Court in this case. Because the issue of the Attorney General's conduct is no longer justiciable here and a judicial determination on this issue would have no impact upon the instant dismissed case, we conclude the issue is moot. Idaho Sch. for Equal Educ. Opportunity, 128 Idaho at 281, 912 P.2d at 649.
Hoyle further argues that a mootness exception applies to the issue of the Attorney General's allegedly unauthorized conduct because the issue is recurrent and thus in need of our guidance, presumably under the "capable of repetition, yet evading review" exception, but Hoyle then points to Bradshaw, 120 Idaho 429, 816 P.2d 986, a case decided under the substantial public interest exception. We conclude that neither mootness exception applies. Assuming arguendo that the "capable of repetition" element of the first exception was reflected in the Attorney General's ongoing prosecution of Hoyle in Case 795, the second element is lacking. Here, the duration of the challenged conduct for three years is not so short as to evade review. Idaho Sch. for Equal Educ. Opportunity, 128 Idaho at 283-84, 912 P.2d at 651-52. Furthermore, although the public maintains a substantial interest in ensuring that the Attorney General operates within the bounds of his legislatively conferred authority, such an interest alone may not suffice to bring an issue within the substantial public interest exception to mootness. Rather, we consider whether: (1) the issue is of wide concern; (2) the issue affects the public interest; (3) the issue likely will recur in a similar manner; and (4) because of the brief durational period during which it affects any individual, the issue likely otherwise would be declared moot and thereby elude judicial review. Russell, 111 Idaho at 183, 722 P.2d at 492. Hoyle does not argue or demonstrate that the challenged conduct exhibits any of the Russell factors. We thus conclude that Hoyle's challenge to the prosecutorial authority of the Attorney General is moot and without exception.
2. Suppression challenge
In the district court, Hoyle filed motions to suppress all evidence obtained pursuant to search warrants. On appeal, however, Hoyle narrows his suppression challenge to the search of his personal and real estate office within Hoyle Insurance's offices, arguing that the warrants were overbroad and vague, and that one search exceeded the scope of its corresponding warrant. Regardless of whether the evidence in question was obtained or suppressed properly, the issue is moot. First, the instant case has been dismissed. Second, Hoyle was acquitted of Counts A and E and twenty-three of the Count B predicate acts. Third, Hoyle was neither convicted nor acquitted on Count B or the remaining seven Acts. Thus, there remains no justiciable controversy upon which our determination would have any practical effect on the outcome. Idaho County Prop. Owners Ass'n v. Syringa Gen. Hosp. Dist., 119 Idaho 309, 315, 805 P.2d 1233, 1239 (1991). Finally, even if the challenged conduct did persist in its impact upon Hoyle in Case 795, constitutional protections, along with the Idaho Rules of Evidence and other procedural safeguards such as the filing of a motion to suppress in Case 795, permit extensive opportunities for Hoyle to effectively challenge the evidence in that case, eliminating any present need for our determination here. Russell, 111 Idaho at 183, 722 P.2d at 492. We therefore conclude that Hoyle's suppression challenge is moot and without exception.
B. Judgment of Acquittal Challenge
Hoyle argues that the district court erred in denying his motion for judgment of acquittal upon its conclusion that the jury had not returned a unanimous verdict on Count B and the seven predicate Acts and that the court erred in denying his acquittal motion on sufficiency of evidence grounds.
Because the instant case is dismissed and because the record reflects that the state has abandoned its prosecution for alleged Acts 9 and 62, this acquittal motion challenge is moot as to these two acts. However, this challenge by Hoyle is not moot as to the five remaining Acts underlying Count B, i.e., Acts 10 and 11 alleging grand theft, and Acts 108, 115, and 118 alleging insurance fraud, for which Hoyle faces continuing prosecution in Case 795. The state concedes that these five Acts are the identical offenses being prosecuted in Case 795. These Acts also constitute lesser included offenses of racketeering as charged in Count B. Sivak v. State, 112 Idaho 197, 210-15, 731 P.2d 192, 205-10 (1986). Accordingly, double jeopardy bars Hoyle's subsequent prosecution in Case 795 or otherwise on one or more of these five Acts if his motion for judgment of acquittal should have been granted. Hudson v. United States, 522 U.S. 93, 98-99 (1997); State v. Colwell, 127 Idaho 854, 857, 908 P.2d 156, 159 (Ct.App. 1995). Thus, Hoyle's challenge to his failed motion for judgment of acquittal is not moot, but remains justiciable under the "collateral legal consequences" exception. Russell, 111 Idaho at 183, 722 P.2d at 492.
1. Acquittal motion based upon the verdict
Hoyle contends that the jury returned a not guilty verdict on Count B. Hoyle argues that the verdict was not guilty because the jury utilized a general verdict form and returned an unambiguous not guilty verdict on that general form. Alternatively, Hoyle claims that the jury returned a verdict containing ambiguous inconsistencies and that those ambiguities should be interpreted in his favor.
Hoyle suggests that, because the jury did not reach a unanimous guilty verdict, the verdict returned was not guilty. We reject any such conclusion. Arizona v. Washington, 434 U.S. 497, 509 (1978). Idaho Criminal Rule 31(a) mandates a unanimous verdict.
Hoyle's additional alternative argument that the use of a special verdict is improper in a criminal case is without merit. The Idaho legislature authorizes the use of general or special verdict forms and recognizes that special verdicts are appropriate in factually complex cases. See I.C. § 19-2304; State v. Bock, 80 Idaho 296, 310, 328 P.2d 1065, 1074 (1958). Moreover, the district court used a special verdict form according to Hoyle's proposal, and the jury indicated their findings on that form in the manner suggested by Hoyle. Further, the form sufficed to "present intelligibly the facts found by the jury." I.C. § 19-2308. Even if it were error to use a special verdict form, Hoyle invited any such error. See, e.g., State v. Carlson, 134 Idaho 389, 402, 3 P.3d 67, 80 (Ct.App. 2000).
A synopsis of key procedural events puts Hoyle's arguments into perspective and directs us to the proper standard of review. When, on June 11, 1999, the jury notified the court that it had been unable to reach agreement on several Count B predicate acts, Hoyle immediately moved for mistrial, and the district court took that motion under advisement. The jury returned its verdict form and was discharged, thereby concluding the trial in the early hours of June 12. Sixteen days later, Hoyle moved for judgment of acquittal on Count B, and the state subsequently moved the court to set a new trial date. In an August 6, 1999, hearing on these motions, the district court perceived that its determination turned on whether the verdict returned by the jury on Count B and the seven Acts constituted an acquittal or whether the court, in its discretion, should conclude that the verdict constituted a mistrial and order a new trial. On August 11, 1999, the district court ruled that the jury had not rendered a verdict on Count B or the seven Acts, denied Hoyle's motion for judgment of acquittal on evidentiary grounds and ordered a new trial. Given these facts, the thrust of Hoyle's arguments regarding the jury verdict is that the district court erred when it decided that the jury was deadlocked and declared a mistrial.
Accordingly, we apply the standard of review for a mistrial determination. The decision to declare a mistrial rests within the sound discretion of the district court and stands on appeal, absent an abuse of that discretion. United States v. Cawley, 630 F.2d 1345, 1349 (9th Cir. 1980); State v. Lee, 131 Idaho 600, 605-07, 961 P.2d 1203, 1208-10 (Ct.App. 1998). In reviewing a discretionary ruling, we undertake a multi-tiered inquiry to determine whether the district court: (1) correctly perceived the issue as falling within its discretionary powers; (2) acted within its discretionary bounds and in accordance with legal standards applicable to the specific choices before it; and (3) reached its decision through an exercise of reason. Lee, 131 Idaho at 607, 961 P.2d at 1210. A district court may declare a mistrial "when, after jury advice, the court is convinced that the jury cannot reach a verdict." I.C.R. 29.1(c). Where the district court declares a mistrial after deciding that the jury is deadlocked, we review that decision with great deference because the district court is in the best position to assess the relevant facts. Cawley, 630 F.2d at 1348.
After ten weeks of trial, the jury deliberated for three days, ultimately reaching a verdict of not guilty on most of the charges against Hoyle. On June 11, 1999, however, the jury sent to the court a note stating in relevant part, "As to Count B, we cannot reach a unanimous agreement on a number of predicate acts. Do you want us to note on [the] verdict form those predicate acts to which we cannot agree? We have made [an] extensive effort to obtain an agreement and don't feel we can." The trial judge questioned the jury to confirm the contents of the note and to confirm that the note accurately reflected the jury's collective statement as to its inability to reach unanimity. The judge then read the note into the record and asked the jury if further deliberations would produce a unanimous verdict. Upon the jury's negative response, the judge instructed the jury to return to the jury room and, through its moderator, to:
fill out the verdict form. . . . [O]n those answers to charges, to questions, and to predicate acts on which you have unanimously agreed, to put in your decision or answers to those questions. On any questions or predicate acts on which you do not unanimously agree, please . . . write down next to that "NA" for no agreement.
These instructions to the jury comported with Idaho law as to the rendering of a special verdict, see I.C. § 19-2307, and with Hoyle's express wishes.
At 12:47 a.m. on June 12, 1999, the jury returned its verdict form to the judge, who read its contents into the record and polled the jury to confirm the jury's verdict as to the matters on which the jury had agreed and as to the matters to which the jury had not agreed. The verdict form as to Count B, with italicized text to reflect the jury's handwritten comments on the form and the necessary supplemental descriptions by this Court, reads in relevant part:
1A. — Did the defendant commit at least two incidents of racketeering conduct?
The jury checked "No," but also wrote "except as to the seven predicate acts upon which we could not reach unanimous agreement."
1B. — Check the appropriate box to reflect your verdict with respect to each of the following predicate acts.
The jury checked the "not guilty" boxes for twenty-three predicate acts, but wrote "no agmt" beside the boxes provided for the seven remaining Acts.
1C. — Did the incidents of racketeering conduct that you find were proven have the same or similar incidents [sic], results, victims, methods of commission or were they otherwise so interrelated by distinguishing characteristics that the [sic] were not isolated incidents?The jury provided no answer.
The court properly instructed the jury as to the alleged predicate Acts' same or similar intents, rather than their same or similar "incidents."
1D. — (If your answer to either question 1A or 1C is "NO," then you must answer both parts of 1D "NOT GUILTY.") Considering your answers to the foregoing questions under the heading "Count B," and considering all the other required elements of the crime of racketeering, you must decide whether the state proved or failed to prove beyond a reasonable doubt that the defendant committed the crime of racketeering under the "investment" theory and the "participation" theory:
The jury checked "not guilty" both for racketeering under the investment theory and for racketeering under the participation theory, but wrote underneath the latter item, "except as to the seven predicate acts upon which we could not reach unanimous agreement."
At this hearing, Hoyle's counsel repeatedly acknowledged the jury's deadlock on Count B and suggested that the jury should return the verdict form after marking the counts on which they could agree and writing "`no agreement' on those particular components that they had not agreed." Hoyle never argued that the jury had returned a not guilty verdict. Nor did Hoyle request clarification of this verdict prior to the jury's discharge, an action that he should have undertaken if the verdict had been ambiguous, as he now claims. See Williams v. United States, 238 F.2d 215, 218-19 (5th Cir. 1956). Indeed, when the state later attempted to bring in testimony by the jury moderator as to the verdict's meaning, Hoyle vigorously opposed those proceedings, and the district court disallowed that testimony. The jury, the court and Hoyle reasonably and unambiguously understood that the jury had failed to decide on Count B or the seven Acts.
A deadlocked jury presents a classic example of a "manifest necessity" for which the original proceedings should be discharged and a mistrial declared. State v. Sharp, 104 Idaho 691, 693, 662 P.2d 1135, 1137 (1983); Cawley, 630 F.2d at 1349. Coupled with the above-recounted facts, the Cawley decision by the United States Court of Appeals for the Ninth Circuit identifies factors to consider when making such a decision. Chief among those factors is the jury's own collective statement that it cannot reach a unanimous agreement, which the district court must verify by questioning the jury. Id. at 1348-49; see I.C.R. 29.1(c). Other relevant factors include the trial's length and complexity, the length of the jury's deliberations, any effects of exhaustion or coercion upon the jury, and any objection by the defendant to mistrial. Cawley, 630 F.2d at 1348-49.
The Cawley factors in this case plainly demonstrate that reason dictated the district court's decision to declare a mistrial. The jury repeatedly expressed its collective opinion that it could not reach agreement as to seven Acts and therefore, on Count B. The lengthy and complex trial addressed multiple counts and a large number of alleged Count B predicate acts. The accounting and loss run evidence presented to the jury was both voluminous and highly technical. The jury engaged in an extensive three-day deliberative period. To have continued deliberations beyond the point at which the jury identified itself as deadlocked, which the court confirmed, only would have exhausted further and potentially coerced the jury.
Thus, we conclude that the district court did not abuse its discretion in declaring a mistrial where the deadlocked jury did not return a unanimous verdict on Count B or the seven Acts.
2. Acquittal motion based upon insufficiency of the evidence
Hoyle also argues that the evidence was insufficient to justify the district court's denial of his motion for judgment of acquittal.
When we review the grant or denial of a motion for judgment of acquittal, we examine the record for sufficiency of the evidence supporting the trial court's determination. The trial court must deny the motion if there is some evidence of guilt produced at trial. Conversely, the motion shall be granted if the record reflects a total lack of inculpatory evidence at trial.
State v. Griffith, 127 Idaho 8, 11, 896 P.2d 334, 337 (1995) (citations omitted).
a. Evidence of racketeering
The state charged Count B against Hoyle under I.C. § 18-7804 of the Racketeering Act, which states, in relevant part:
(a) It is unlawful for any person who has received any proceeds derived directly or indirectly from a pattern of racketeering activity in which the person has participated, to use or invest, directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof in the acquisition of any interest in, or the establishment or operation of, any enterprise or real property. . . .
"Racketeering" is defined as any act chargeable or indictable, including theft and insurance fraud, under enumerated sections of the Idaho Code, or equivalent laws of other jurisdictions. I.C. § 18-7803(2), (10). A "person" is defined as an individual or entity capable of holding a property interest. I.C. § 18-7803(b). An "enterprise" is defined to include "any sole proprietorship, partnership, corporation, business . . . association or other legal entity or any group of individuals associated in fact although not a legal entity. . . ." I.C. § 18-7803(c).
The legislature since has amended some of the provisions under which Hoyle was charged in 1997. Although we herein refer to the relevant statutory language in the present tense, we apply the statutes in force at that time. When Hoyle was charged with racketeering predicated on grand theft and insurance fraud, I.C. § 18-7803(2) defined racketeering as predicated on acts of theft under I.C. § 18-2403 without distinction as to the degree of theft, as determined under I.C. § 18-2407. Hoyle was charged with predicate acts of grand theft under I.C. §§ 18-2403 and 18-2407. Notwithstanding certain citation errors, the indictments and jury instructions clearly indicate that Hoyle was charged with grand theft for theft of property valued in excess of $300. See I.C. § 18-2407(1)(b)1.
Idaho Code § 18-7803(10) then also defined racketeering as predicated on insurance fraud under I.C. § 41-1325. In 1994, however, the legislature amended I.C. § 41-1325 and redesignated it as I.C. § 41-293. See Act of Mar. 28, 1994, H.B. 789, ch. 219, 1994 Idaho Sess. Laws, sec. 5, § 41-1325, 699-700. Although I.C. § 18-7803(10) had not been updated at the time of Hoyle's indictment to reflect that redesignation, the indictment charged Hoyle with predicate acts of insurance fraud properly under I.C. § 41-293.
The statute establishes a "pattern of racketeering activity" as an essential element defined as "engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated incidents. . . ." I.C. § 18-7803(d). As racketeering has been charged against Hoyle, this "pattern of racketeering activity" element is the occurrence of two or more of the remaining alleged predicate Acts, that is, Acts of grand theft, insurance fraud, or a combination thereof. This is true because two or more incidents of the commission of grand theft of insurance premiums by the failure to return refunds due to clients; the commission of insurance fraud by the submission of materially false insurance applications; or a combination of both types of Acts satisfies the statutory definition of a "pattern of racketeering activity." Thus, we turn to examine the sufficiency of the evidence as to each alleged predicate Act.
b. Evidence of grand theft
Acts 10 and 11 alleged Hoyle's grand theft of insurance premiums from The Community House in an amount of between $300 and $763.74; and from Baird's Dry Cleaners (Baird's) in an amount of between $300 and $2650. Each Act of grand theft of property valued in excess of $300, I.C. § 18-2407(1)(b)(1), was alleged under I.C. § 18-2403, subsections (1) and (2)(a)(b), which read, in relevant part:
(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 the 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;
(b) By conduct heretofore defined or known as larceny; common law larceny by trick; embezzlement; extortion; [or] obtaining property, money or labor under false pretenses. . . .
As to Act 10, Hoyle Insurance's accounting records showed that Community House had a $683.67 credit balance on its account as of January 31, 1997. A March 3, 1997, journal entry zeroed out this balance by transferring that amount to the commission account. Jill Equals, Hoyle Insurance's accounting supervisor, made that transferral entry upon Hoyle's written instructions. Equals later confirmed that the transferral entry had not been reversed and that Community House was not refunded the $683.67 credit balance to which it was entitled. The state's accounting expert, Dale Willman, testified that these Hoyle Insurance records should have included a written justification for the transfer, but that he found none. Hoyle's compensation arrangements would have operated to result in his receipt of additional commission or commission override payments or both. Although Hoyle may not have received the direct payment of monies as a result of this $683.67 transferral, violative conduct under I.C. § 18-7804 is not limited to the direct receipt of proceeds. Thus, we conclude that there is some evidence of Hoyle's guilt as to Act 10.
As to Act 11, Hoyle Insurance's accounting records showed a September 4, 1996, journal entry to record the return of $100 to Baird's, and an October 15, 1996, entry recording the receipt of $2750 from Baird's, resulting in a credit balance of $2650. This $2750 amount was a premium payment, including the commission to be paid, for Baird's furrier policy. Because Baird's already had paid for that policy, the October 15, 1996, entry represented a duplicate payment, and Equals notified Hoyle of these facts in writing. Instead of ordering the credit balance returned to Baird's, Hoyle in writing directed Equals in March 1997 to transfer this credit to the commission account, despite an obvious notation of "paid twice" on the document. Equals made that entry, thus zeroing out the Baird's account. Accordingly, we conclude there is some evidence of Hoyle's guilt as to Act 11.
c. Evidence of insurance fraud
Acts 108, 115, and 118 asserted insurance fraud by Hoyle involving the submission of allegedly materially false applications for insurance. Idaho Code § 41-293 defines the alleged predicate acts of insurance fraud to include occurrences in which "[a]ny insurance agent or other person who with intent to defraud or deceive an insurer presents or causes to be presented to or by an insurer, a purported insurer or agent, a materially false or altered application of insurance." I.C. § 41-293(1)(c).
Act 108 involved a single insurance application encompassing Sta-Bax, Inc., Harry's Dry Dock Winter Sports (Harry's Dry Dock), and Sports Marina, Inc. and in which the entity and properties to be insured allegedly were misrepresented, thereby misleading the insurer as to the applicant's loss history. Working extensively with insurers in a marketing capacity at Hoyle Insurance, Karen Boyd submitted insurance applications, obtained premium quotes and processed policy changes. Hoyle asked Boyd to submit an application for Harry's Dry Dock, one of Hoyle's client accounts, to specific insurers. After preparing that application, Boyd asked Hoyle for his review and for permission to order loss runs from the client's prior insurers. These loss runs caused "concern" because American States Insurance Company (American States) had sent a non-renewal notice on the client's policy due to a boat storage facility loss claimed against the policy. This notice had created tension between Hoyle Insurance and American States.
Hoyle testified that he and the American States underwriter in Salt Lake City decided to "go ahead and write insurance on the Sports Marina because in part, Harry's Dry Dock really didn't exist at that point in time. This was their major location, and Harry's Dry Dock was only going to become another storage facility. . . ." Sports Marina, Inc. was a newly acquired subsidiary of Harry's Dry Dock. Hoyle instructed Boyd in writing to submit the client's application under the Sports Marina name to American States, but not to mention Harry's Dry Dock on the application. Further, he informed her that Harry's Dry Dock would be added to the Sports Marina policy after it was issued and after American States moved its operations to Seattle, a move that would not include its Salt Lake City underwriter who had sent the non-renewal notice. Additional evidence indicates that this plan was carried out.
This evidence shows that Hoyle intentionally attempted to obscure the loss history associated with Harry's Dry Dock by causing the submission of an insurance application in the Sports Marina name and the non-disclosure of the names of all entities to be insured thereunder. The misrepresentation of a potential insured entity's loss history carried out by obscuring and failing to disclose the names of the entities to be insured for the purpose of deceiving the insurer as to the risk involved in supplying coverage constitutes a material falsehood or alteration under I.C. § 41-293(1)(c). Without inquiring further as to any misrepresentations in the property inventory to be insured, we conclude that there is some evidence of Hoyle's guilt as to Act 108.
Act 115 alleged the submission of misrepresented loss runs. Boyd marketed the Stiforp, Inc. (Stiforp) account to Kemper National Insurance (Kemper) for Hoyle. Boyd wrote to inform Hoyle that Kemper had requested Stiforp's loss runs. There, she stated that she had those loss runs, but that the submitted application had shown that Stiforp had had no losses claimed against Stiforp's 1991-1994 policies with American States or against its 1994-1996 policies with another insurer, AIG. She asked Hoyle how he wanted her to handle Stiforp's loss runs.
Hoyle wrote back, permitting Boyd to submit the AIG loss runs to Kemper. As to the American States' loss runs for Stiforp, however, Hoyle instructed Boyd to obtain the American States' loss runs for Larsen of Idaho (Larsen), which showed no losses from 1991-1994, and "do one similar to it" for Stiforp. Boyd clearly understood that she was "to make a document for Stiforp that looked similar to" the Larsen loss runs. Hoyle testified that he intended Boyd to "put together a loss run that showed no losses, similar to the one that we had on Larsen because they had not had any losses."
Following Hoyle's instructions, Boyd obtained the Larsen loss runs from American States, "doctored" those documents, and submitted them to Kemper, representing them to be Stiforp's loss runs from American States. She also marketed the Stiforp account to American West Insurance, again representing the doctored Larsen loss runs to be those of Stiforp. Although Hoyle Insurance had Stiforp's loss runs from Mattei Associates at the time of these events, Boyd did not send these loss runs to Kemper or American West Insurance in marketing the Stiforp account. This testimony as to Act 115, shows that Hoyle intended to defraud or deceive the insurer. Thus, we conclude that there is some evidence of his guilt as to Act 115.
Act 118 alleged that Hoyle caused Boyd to add three vehicles belonging to Today's Child, which was owned by Jerry and Julie Heinrichs, to an existing policy for LaFever Roofing (LaFever), thus representing that the vehicles belonged to the latter company. The evidence reflects that coverage for the three vehicles had been deleted from the LaFever policy with Ohio Casualty, and Hoyle Insurance submitted an October 1995 application for Today's Child seeking coverage for those vehicles. Subsequently, Hoyle instructed Boyd to add the vehicles back onto the LaFever policy, effective November 1, 1995. Boyd then sent a facsimile to the underwriter, falsely stating that the vehicles were "erroneously deleted" from the LaFever policy.
The owners of LaFever Roofing originally had owned Today's Child, but had sold that day care center to the Heinrichs after which the subject events occurred.
In about March 1997, a Continental Western underwriter declined to provide a premium quotation for Today's Child because the carrier did not wish to provide vehicle coverage for day care centers. Boyd discussed this matter with Hoyle and asked him whether to submit an application for Today's Child to another likely more receptive carrier. Hoyle declined this idea and instructed Boyd that, when Hoyle Insurance transferred the LaFever account to another carrier, she was to leave coverage for the vehicles on the LaFever policy with Ohio Casualty and then change that policy to the Heinrichs' name. The evidence as to Act 118 again shows that Hoyle intended to defraud or deceive the insurer. Thus, we conclude that there is some evidence of guilt as to Act 118.
As to the other elements of Count B under subpart (a) of I.C. § 18-7804, the evidence shows that Hoyle received proceeds that were derived from the alleged Acts in that Hoyle was compensated by FSI and/or Hoyle Insurance with a $174,000 annual salary, commission payments on his own insurance sales, commission override payments on sales generated by Hoyle Insurance as a whole, a $25,000 non-competition payment, and other payments. The evidence further shows that Hoyle used or invested, directly or indirectly, all or part of such proceeds in that Hoyle Real Estate was kept afloat with almost $1.6 million transferred from Hoyle Insurance, Hoyle's personal checking account, and FSI's services account and line of credit.
Because the evidence suffices under I.C. § 18-7804(a), we need not proceed under subparts (b) or (c). To the extent necessary, Hoyle and Hoyle Insurance, or alternatively Hoyle and others operating in association with him or under his direction, satisfy the elements for "person" and "enterprise." I.C. § 18-7803(b)-(c); see State v. Hansen, 125 Idaho 927, 930-32, 877 P.2d 898, 901-03 (1994). The alleged Acts, dating collectively from about July 1995 to about March 1997, also have the necessary temporal connectedness. I.C. § 18-7803(d).
Based on our review of the evidence of racketeering, grand theft and insurance fraud, we conclude that there is some evidence of Hoyle's guilt with respect to Count B and Acts 10, 11, 108, 115, and 118. Griffith, 127 Idaho at 11, 896 P.2d at 337. Because there is such inculpatory evidence, we hold that the district court did not abuse its discretion in denying Hoyle's motion for judgment of acquittal.
C. Dismissal Without Prejudice
Finally, Hoyle argues that the district court wrongly dismissed the case without prejudice. Hoyle does not challenge the dismissal, but rather claims that because the state was unprepared to proceed with retrial, the court erred in failing to assign prejudice to the dismissal and that he preserved the issue for appeal. When reviewing the dismissal of a criminal proceeding under I.C.R. 48(a)(2), we determine whether the district court erred as a matter of law. State v. Swenson, 119 Idaho 706, 708, 809 P.2d 1185, 1187 (Ct.App. 1991).
Our review of the record, particularly as to the August 6, 1999, and September 11, 2000, proceedings, reveals that Hoyle neither requested the assignment of prejudice nor objected to the district court's dismissal without prejudice. One may not complain of errors one has consented to or acquiesced in. State v. Carlson, 134 Idaho 389, 402, 3 P.3d 67, 80 (Ct.App. 2000). Moreover, both I.C. § 19-3506 and Rule 48(c) provide that a dismissal order does not bar other prosecutions for the same felony offense. Thus, we conclude the district court did not err in dismissing the instant case without prejudice.
III. CONCLUSION
We hold that, because the instant case was dismissed and because no mootness exceptions apply to Hoyle's challenges to the prosecutorial authority of the Attorney General, to his motions to suppress evidence, to retrial on Count B on double jeopardy grounds, and to his motion for judgment of acquittal as to Acts 9 and 62, these issues are moot. Because the collateral legal consequences exception to mootness doctrine applies to Hoyle's challenge to his motion for judgment of acquittal as to Count B, along with its predicate Acts 10, 11, 108, 115, and 118, we hold that this issue is not moot. We hold, however, that the district court did not abuse its discretion in determining that the jury did not return a unanimous verdict on Count B or Acts 10, 11, 108, 115, or 118. Because the evidence suffices, we also hold that the district court did not abuse its discretion in denying Hoyle's motion for judgment of acquittal. Finally, we hold that the district court did not err when it dismissed the instant case without prejudice. Accordingly, we affirm the orders of the district court denying Hoyle's motions for acquittal, suppression and disqualification of the Attorney General, as well as the decision of the district court to dismiss the case without prejudice.
Judge PERRY and Judge Pro Tem HART CONCUR.