IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 32625
STATE OF IDAHO,
Plaintiff-Respondent,

v.
RUTH M. CHEENEY,
Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) 2007 Opinion No. 25
Filed: May 7, 2007
Stephen W. Kenyon, Clerk

Appeal from the District C ourt of the Second Judicial Di strict, State of Idaho, Nez Perce County. Hon. Jeff M. Brudie, District Judge.
Order of restitution, affirmed in part , reversed in part , and remanded ; judgment of restitution in favor of Wells Fargo Bank, vacated ; judgment of restitution in favor of Stuart Allan and Associates, vacated

. Clark & Feeney, Lewiston, for appellant. Charles M. Stroschein argued.
Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respond ent. Daniel W. Bower argued.

______________________________________________ PERRY, Chief Judge Ruth M. Cheeney appeals from the district court’s order of restitu tion and judgments of restitution. For the reasons set forth below, we vacate the judgments of restitution in favor of Wells Fargo Bank and Stuart Allan and Associ ates and remand for entry of an amended judgment of restitution payable to the di rect victim of Cheeney’s crime.
I.
FACTS AND PROCEDURE As an employee at a doctor’s office, Cheen ey was responsible for billing and deposits, including deposits of checks received for the doct or’s services, into his account at Wells Fargo Bank. When making the deposits at Wells Fargo, Cheeney would apparently deposit all checks but one, instructing the teller that one check needed to be cashed for use at the doctor’s office. Cheeney would keep the cash. In August 2003, the doctor terminated Cheeney’s employment for allegedly procuring fraudulent prescriptions an d for irregularities with office petty cash. The

1doctor soon thereafter discovered that substa ntial amounts of money were missing. Cheeney allegedly embezzled over $200,000 between January 2000 and August 2003. Thereafter, Wells Fargo entered into a settle ment agreement with the doctor, whereby the bank paid the doctor $157,500 for losses he incurred as a result of Cheeney’s theft. Additionally, Safeco Insurance Company apparently paid th e doctor $15,000 for his loss. Stuart Allan and Associates, a collection agency, began pursuin g the $15,000 from Cheeney on behalf of the insurance company. The state charged Cheeney w ith grand theft. I.C. §§ 18- 2403(2)(b) and 18-2407(1)(b)(8). Cheeney pled guilty, and the state dismissed char ges filed in a separate criminal case. The district court sentenced Cheeney to a unified te rm of seven years, with a minimum period of confinement of three years, and ordered rest itution in the amount of $232,788.49. The district court subsequently suspended Cheeney’s sentence and placed her on probation for seven years. Cheeney objected to the order of restitution. At a hearin g on Cheeney’s objection, Cheeney stipulated to $220,589.55 being the pr oper amount of restitution but argued that the bank and the collection agency were not entitled to restitution. The district court entered an order for restitution and separate judgm ents in favor of the doctor for $48,089.55, Wells Fargo Bank for $157,500, and Stuart Allan for $15,000. Cheeney a ppeals the order of restitution and the judgments in favor of Wells Fargo and Stuart Allan.
II.
ANALYSIS Cheeney does not dispute that the doctor was authorized to receive restitution. Cheeney disputes the district court’s ruling and the state’s argument on appeal that the bank and the insurance company’s collection agency were also authorized to receive restitution. Orders for the payment of restitution to cr ime victims are governed by I.C. § 19-5304.
State v. Taie , 138 Idaho 878, 879, 71 P.3d 477, 478 (Ct. A pp. 2003). The decision whether to require restitution is committed to the trial court’s discretion. Id . It is generally recognized, however, that courts of criminal jurisdiction have no power or authority to direct reparations or restitution to a crime victim in the absence of a statutory provision to such effect. State v.
Richmond , 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct. App. 2002). Therefore, the trial court’s exercise of discretion in requir ing restitution must be within th e boundaries provided in Section 19-5304. To qualify for restitution, a claimant must be a “victim” as that term is used in the

2statute. I.C. §§ 19-5304(1)(e), (2). Restituti on may be ordered only for actual economic loss suffered by a victim. I.C. §§ 19-5304(1)(a), (2). Determination of the amount of economic loss shall be based upon the prepondera nce of evidence subm itted to the court by the prosecutor, defendant, victim or presentence investigator. I.C. § 19-5304(6). Each party shall have the right to present such evidence as may be relevant to the issue of restitution, and the court may consider such hearsay as may be contained in the pres entence report, victim impact statement, or otherwise provided to the court. Id. On appeal, the award will be upheld if it is supported by
substantial evidence. See Taie , 138 Idaho at 879, 71 P.3d at 478; State v. Hamilton , 129 Idaho 938, 943, 935 P.2d 201, 206 (Ct. App. 1997); State v. Bybee , 115 Idaho 541, 544, 768 P.2d 804, 807 (Ct. App. 1989). The present case requires us to determine whether the bank and the insurance company’s collection agency fall within the statutory defin ition of “victims” who are authorized to receive
restitution. This Court addressed this issue in State v. Gardiner , 127 Idaho 156, 898 P.2d 615 (Ct. App. 1995) under a prior vers ion of Section 19-5304, which did not include insurers within
the definition of victims. We held that the district court could award the directly-injured victim
the full amount of the economic loss even thou gh an insurance company had already paid the directly-injured victim for the loss. See Gardiner
, 127 Idaho at 167, 898 P.2d at 626. This Court reasoned that, pursuant to Secti on 19-5304(2), the existence of an insuran ce policy covering the
victim’s loss does not absolve a defendant of th e obligation to pay restitution. The defendant was thus prevented from gaining a “windfall” just because the victim had the foresight to obtain
insurance. The definition of victim in Section 19-5304(1)(e) wa s amended to include insurers and certain other person s and entities after the Gardiner decision. 1 See 1997 Idaho Sess. Laws, ch. 112 at 272. Section 19-5304(1)(e) now includes four categories of victims. See I.C. §§ 19- 5304(1)(e)(i), (ii), (iii), and (i v). Pertinent to this appeal, Section 19-5304(1)(e)(iv) defines victim to include “a person or en tity who suffers economic loss becau se 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.”

1 Cheeney’s reliance on Gardiner as authority establishing which persons or entities may be victims is therefore misplaced. This Cour t recognized the amendment to the definition of victim in a case not cited in Cheeney’s opening brief. See Taie , 138 Idaho at 879 n.1, 71 P.3d at 478 n.1.

3This Court exercises free review over the application and constr uction of statutes. State v. Reyes , 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. Ap p. 2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the stat ute as written, without 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 langu age 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 o ccasion for the court to resort to legislative history or rules of st atutory interpretation. Escobar , 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory c onstruction, it has the duty to ascer tain 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 le gislative 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). Section 19-5304(1)(e)(iv) unambiguously includes in the definition of victim any person or entity who suffers economic loss because such person or entity has made payments to or on behalf of a directly-injured vict im pursuant to a contract. A pl ain reading therefore includes third parties who incurred a lo ss pursuant to a contractual obligation to make payments to or on behalf of a directly-injured vict im. Without such a contr actual obligation, the thir d party is not a victim as defined in Section 19-5304(1 )(e)(iv). Such third-party vi ctims could include insurance companies or any other party that makes payments to or on behalf of the directly-injured victim pursuant to a contract. The dete rmination of whether payments we re made pursuant to a contract is a question of fact for the trial court. Each party has the right to present evidence on whether a person or entity qualifies as a victim, and the court may consider such hearsay as may be contained in the presentence report (PSI), victim impact statement, or ot herwise provided to the

court. See I.C. § 19-5304(6). On appeal, factual findings in ordering restitution will not be disturbed if supported by substantial evidence. See Hamilton , 129 Idaho at 943, 935 P.2d at 206; Bybee , 115 Idaho at 544, 768 P.2d at 807.

4Nothing in Section 19-5304 requires that the directly-injured vic tim’s award must be reduced by amounts paid to him or her by any th ird party who does not qualify as a victim under
the statute. As it did at the time of the Gardiner decision, Section 19-5304(2) still provides that the existence of an insurance policy covering th e victim’s loss does not absolve a defendant of the obligation to pay restitution. We conclude that, in amending Sectio n 19-5304, the legislature did not intend to supers ede the portion of the Gardiner decision holding that the district court could award the directly-injured victim the fu ll amount of the economic loss even though a third party had already paid the direc tly-injured victim for the loss. See id.
, 127 Idaho at 167, 898 P.2d at 626. A defendant is therefore still preven ted from gaining a windfall in the event that a victim had the foresight to obtain insurance or the diligence to pursue some other form of compensation for his or her loss. This Court has relied on Section 19-5304(1)(e)(iv) to hold that insurance companies that paid benefits for damage inflicted by a defendan t’s criminal actions were victims entitled to
recover their economic loss. See Taie , 138 Idaho at 879, 71 P.3d at 478. The defendant in Taie did not argue, however, that the state failed to prove the insuran ce companies were contractually obligated to make payments to the directly-inj ured victims. Rather, the defendant’s argument was limited to challenges that the evidence did not support the amount of the restitution order and that the district court failed to adequately consider Taie’s inability to actually pay the total award. Therefore, Taie did not address the sufficiency of th e evidence presented by the state to establish that the insurance companies were victims who made their payments pursuant to contractual obligations. In the present case, Cheeney argues that the st ate did not present sufficient evidence that Wells Fargo or Safeco were victims who made their payments to the doctor because of contractual obligations requiring them to do so. The district court found, in a written order on restitution, that the doctor carried a business insura nce policy with Safeco and that the insurance company subsequently contracted with Stua rt Allan to collect the $15,000 payment from Cheeney. If the district court’ s findings were supported by substant ial evidence, Safeco could be
a victim because the district court found that Sa feco paid the doctor purs uant to a contract--an insurance policy. However, the di strict court did not find, and th e state does not argue, that the collection agency paid the doctor $15,000. The dist rict court could therefore order restitution to be paid directly to Stuart A llan only if Section 19-5304 authori zes payment of restitution to be

5made to an agent of a person or entity that qualif ies as a victim. We need not decide whether the district court may award restitution to Stuart Allan, as Safeco’s agent, because the record before
us does not contain substantial evidence of an insu rance contract to qualify Safeco as a victim. The only evidence pertinent to Safeco is a collec tion letter to Cheeney from Stuart Allan for $15,000. The letter indicates that Saf eco is Stuart Allan’s client, but it makes no reference to an insurance policy or a payment fr om Safeco to the doctor. Likewise, we need not determine whether the district court made a finding that Wells Fargo made its payment pursuant to a contract because the record before us does not support such a finding. The record includes a settlement agreement between Wells Fargo and the doctor,
a letter from the bank’s counsel regarding the settlement agreem ent, and a copy of a check for $157,500 from the bank to the doctor. These exhi bits refer to an agreemen t to settle an account dispute, but the exhibits do not indicate that the dis pute arose from a contract between the bank
and the doctor. Based on the evidence before us , the dispute could have arisen, as Cheeney asserts it did, from an allegati on that the bank acted negligently rather than from a contractual obligation the bank had to the doctor. We are therefore not persuaded by the state’s argument that evidence of the settlement agreement qualifies as evidence that the $157,500 payment was made pursuant to a contract. The state argues that it provided Cheeney with a three-inch-thick stack of documents regarding restitution, which included information es tablishing that the payments made by Wells Fargo and Safeco were made pursu ant to contracts with the docto r. The state does not show, however, that this three-inch-thick stack of docum ents was ever presented to the district court
and it is not included in the record before us. The district court therefore could not rely upon it. The state also cites several pages from the PSI. None of the portions of the PSI cited by the state
refer to Safeco or Stuart Alla n. The PSI indicates that Cheeney embezzled the money at the bank, but it does not indicate that the bank pa id the doctor pursuant to a contract. The transcript from the rest itution hearing indicates that the state did not present any testimony or evidence during the hearing. At the hearing, however, the doctor and the prosecutor represented that the doctor had an insurance policy with Safeco. THE COURT: Safeco Insurance was evidently the insurance provider for [the doctor], some kind of business operation policy. [DOCTOR]: That’s correct, Your Honor. [PROSECUTOR]: Yes, Your Honor.

6[DEFENSE COUNSEL]: Judge, I’m going to object to people in the gallery making comments to the court. THE COURT: That’s fine. . . .
The doctor was not under oath when he responded to the district co urt. Pursuant to Section 19- 5304(6), the court may consider such hearsay as may be contained in the PSI, victim impact statement, or otherwise provided to the court. Section 19-5304(6) therefore sets a lower standard than the rules of evidence that would apply to a cr iminal trial. If the doctor had indicated that he had an insurance policy with Safeco while testifyi ng under oath at the restitution hearing or in his victim impact statement in the PSI, the distri ct court could have relied upon his statement as evidence. However, the doctor’s unsolicited comment while he was not under oath and the prosecutor’s unsupported repr esentations cannot be relied upon as evidence of the existence of a contract, even under the low evidentiary st andard established in Section 19-5304(6). In sum, the record is devoid of any evidence, hearsay or otherwise, that Wells Fargo and Safeco made payments pursuant to contractua l obligations to the doctor. Section 19- 5304(1)(e)(iv) requires evidence of a contractual obligation before th e district court may enter an order of restitution and judgm ent for a third-party victim that incurred a loss by making payments to a directly-injured victim. Courts of criminal juri sdiction have no power to direct
restitution to a crime victim in the absence of a statutory provisi on authorizing su ch restitution.
See Richmond , 137 Idaho at 37, 43 P.3d at 796. We are therefore cons trained to hold that the
district court erred when it ordered restitution to be paid directly to We lls Fargo and Safeco’s collection agency, Stuart Allan. Cheeney, however, does not gain a windfall due to the doctor’s foresight and diligence in securing substantial compensation for his loss. Cheeney stipulat ed that the proper amount of restitution was $220,589.55. As noted above, nothing in Sectio n 19-5304 limits the directly-injured victim’s awar d by amounts paid to him or her by any other third party who does not qualify as a victim under the statute. Indeed, in Gardiner , this Court held that the district court could award the directly-injured victim the full amount of the economic loss even though an insurance company had already paid the directly-injured victim for the loss. See Gardiner
, 127 Idaho at 167, 898 P.2d at 626. That holding in Gardiner was not superseded by the statutory amendment redefining the term “victim.” In th e absence of evidence that payments by Wells Fargo and Safeco were made pursuant to contra ctual obligations, the st atute authorizes the

7district court to order Cheeney to pay the doctor restitution for the entire amount of the economic loss that Cheeney stipulated to have caused, $220,589.55. 2

III.
CONCLUSION
We hold that the district cour t erred by ordering Cheeney to pay restitution directly to Wells Fargo and Stuart Allan when the state faile d to present substantial evidence that those parties incurred an economic loss pursuant to cont racts with the doctor. We therefore reverse the
district court’s order to the exte nt that it awarded restitution to the bank and collection agency and vacate the judgments of restitution for the ba nk and the collection agenc y. The district court was authorized, however, to order Cheeney to pay restitution in favor of the doctor for the entire amount of the economic loss to which Cheeney stipulated, $220,589.55. We therefore affirm the
district court’s order to the exte nt that it awarded restitution to the doctor in the amount of $48,089.55. On remand, however, the dist rict court is instructed to enter an amended order of
restitution and enter an a dditional judgment for $172,500 in favor of the doctor. Judge LANSING and J udge Pro Tem WALTERS, CONCUR.

2 It will be up to Wells Fargo and Safeco to work out with the doctor any reimbursement for the amounts they paid to the doctor. See Gardiner , 127 Idaho at 167, 898 P.2d at 626.

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