State v. Oar

161 Idaho 550

388 P.3d 65

STATE of Idaho, Plaintiff-Respondent,

v.Patrick Segundo OAR, Defendant-Appellant.

Docket No. 43254

Court of Appeals of Idaho.

Filed: November 21, 2016

Review Denied February 8, 2017

Eric D. Fredericksen, Interim State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Judge

Patrick Segundo Oar appeals from his judgment of conviction for grand theft by extortion following a jury trial. Specifically, Oar argues there was insufficient evidence to support his conviction and the district court imposed an excessive sentence. We affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

Oar was being housed in the Ada County Jail for a parole violation when he met fellow inmate, "Omar." Omar was a drug trafficker who had been distributing drugs from Mexico to California and Idaho prior to his arrest. Omar had been arrested for methamphetamine trafficking after one of his associates, M.D., assisted police as a confidential informant and testified against Omar.

At the time Oar met Omar, M.D. owed Omar several thousand dollars for drugs Omar had previously given to M.D. Upon learning of this debt, Oar agreed to help Omar collect the money from M.D. with the help of a woman named Blake that Oar knew from a previous job. As part of the plan, Oar gave Blake a letter written by Omar that Blake was instructed to deliver to M.D. The letter stated that it was from Omar, contained details about Omar that M.D. knew, and instructed M.D. to pay the debt. The letter also stated, "my freands [sic] in California are really mad so I don't want you guys get [sic] in troble [sic] let's fixe [sic] this before becomes [sic] a big problem."

Blake visited M.D.'s place of work late at night. Blake stated that she was there on behalf of Omar and delivered the threatening letter to M.D. In response, M.D. told Blake that M.D. would pay the full amount but that she needed a few days to get the money together. The next morning, M.D. contacted the detective with whom M.D. had worked as a confidential informant in the case against Omar. The detective provided M.D. with marked currency and directed her to deliver the money to Blake while recording the conversation. In a transaction monitored by police officers, M.D. gave the money to Blake, who was then arrested.

Oar was indicted on one count of conspiracy to commit grand theft by extortion, naming Blake as co-conspirator, Idaho Code §§ 18–1701, 18–2403(2)(e), 18–2407(1)(a)(1). Oar was also indicted on one count of grand theft by extortion, I.C. §§ 18–2403(2)(e), 18–2407(1)(a)(1), 18–204. The State later filed an information against Oar charging a persistent violator enhancement, I.C. § 19–2514. Following a joint trial with Blake, Oar was found guilty on both counts and admitted to the enhancement.

The district court imposed seventeen-year unified sentences with five years determinate on both counts. These sentences were set to run concurrently to one another but consecutive to Oar's existing sentence for his parole violation. Oar timely appeals.

II.ANALYSIS

In his appeal, Oar argues that there was insufficient evidence to support his conviction for grand theft by extortion. He also argues that the district court abused its discretion by imposing an excessive sentence in light of the mitigating factors presented at sentencing. We address each issue in turn.

A. Sufficiency of Evidence

Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera–Brito , 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998) ; State v. Knutson , 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Knutson , 121 Idaho at 104, 822 P.2d at 1001 ; State v. Decker , 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light most favorable to the prosecution. Herrera–Brito , 131 Idaho at 385, 957 P.2d at 1101 ; Knutson , 121 Idaho at 104, 822 P.2d at 1001.

Oar maintains that the statutory language for the crime of grand theft by extortion requires that his threat actually be the compelling force behind the victim's act of delivering the property. While Oar does not suggest that M.D. never felt fear as a result of the threatening letter, Oar does argue that M.D.'s fear instilled by the threatening letter did not compel M.D.'s delivery of the money. Oar acknowledges that there was evidence to support finding that he attempted to compel, induce, or cause M.D. to deliver the money by threat of physical injury, but that it was not his threat which ultimately resulted in M.D.'s act of delivering the money. Oar argues that the "undisputed" evidence at trial indicated that M.D. delivered the money because of the detective's instruction, not because of fear.

We first address Oar's argument by examining the statutory language establishing the elements of extortion to determine to what extent the fear instilled by the extortionist must compel the delivery of property by the victim. 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 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.

The crime of grand theft by extortion is set forth in Idaho Code § 18–2403(2)(e). This statute reads, in relevant part:

A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:

1. Cause physical injury to some person in the future....

(emphasis added).

This statutory language is unambiguous, thus we need not explore beyond the plain language. See State v. McIntosh , 160 Idaho 1, 6, 368 P.3d 621, 626 (2016) ("[L]ooking elsewhere for interpretative guidance is only appropriate when the plain language is ambiguous."). The plain language establishes that a defendant's threat must instill a fear that compels or induces a person to deliver property. The basic premise behind the crime of statutory extortion is the defendant's use of fear to obtain property. See 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW : § 20.4 (2d ed. 2016). However, the statutory language here does not mandate that the fear instilled by the extortionist be the sole or even the primary force compelling the victim's surrender of property.¹ The fear instilled by the extortionist need only remain a motivating force at the time the victim surrenders the property.² Consequently, a defendant who obtains property from a victim absent fear instilled by the defendant's threat can be guilty only of attempted extortion. See People v. Gardner , 144 N.Y. 119, 38 N.E. 1003, 1004 (N.Y. 1894) (holding defendant could not be guilty of completed crime of extortion where victim delivered property absent any fear from defendant's threat, but could be guilty of attempted extortion due to his intent to instill fear).

We next turn to Oar's argument that the evidence is "undisputed" that police compelled M.D. to deliver the money to Blake. Although this argument may be factually correct, it falls short of precluding Oar's conviction as a matter of law. His argument suggests a proposition that, where police are involved in the exchange of property between a victim and an extortionist, such involvement precludes a jury's ability to find that the victim was compelled by fear instilled by the extortionist's threat. While Idaho courts have never addressed such a proposition, we are guided by other jurisdictions with similar extortion statutes. These courts hold that even though fear must motivate the delivery of property to the extortionist, police involvement does not automatically overcome or dissipate the motivating fear. See State v. Marsh , 43 Or.App. 571, 603 P.2d 1212, 1215 (Or. Ct. App. 1979) ; State v. Prince , 75 Utah 205, 284 P. 108, 110 (Utah 1930).

In Prince , the defendant threatened to kill the victim unless he gave the defendant money. Prince , 284 P. at 109. The victim contacted police, who instructed the victim to give the money to the defendant and agreed to follow the victim and apprehend the defendant after he received the money. Id. at 110. On appeal from his conviction for extortion, the defendant argued the evidence showed that the victim's conduct of paying the money was not actuated by fear, but rather by his intent to entrap the defendant at the suggestion of law enforcement officials. Id. at 109. The court disagreed, stating there was sufficient evidence for the jury to find that the victim's fear, induced by threats, was a controlling factor despite the police involvement. Id. at 110. The court explained:

From the whole record we are unable to say that the evidence conclusively shows that the fear which [the victim] suffered before he visited the sheriff had

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