1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44232

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JOSEPH ANTHONY MAURO,

Defendant-Appellant.

)

)

)

)

)

)

)

)

)

)

2017 Unpublished Opinion No. 446

Filed: April 25, 2017

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, 

Kootenai County. Hon. Scott L. Wayman, District Judge. 

Judgment of conviction, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

HUSKEY, Judge

Joseph Anthony Mauro appeals from a judgment of conviction entered upon a jury 

verdict finding him guilty of insurance fraud. Mauro contends the State committed prosecutorial 

misconduct by stating that his girlfriend’s knowledge regarding the insurance fraud was 

irrelevant. He argues this was a misstatement of the law because the State was required to prove 

a shared criminal intent between Mauro and his girlfriend in order to convict Mauro of 

committing insurance fraud under an aiding and abetting theory. Mauro contends the error was 

not harmless beyond a reasonable doubt. The State argues the prosecutor did not misstate the 

law because the State was only required to prove the criminal intent of Mauro. Even if there was 

error, the State contends any such error was harmless. 
2

I. 

FACTUAL AND PROCEDURAL BACKGROUND

In April 2014, Mauro reported the theft of a tractor belonging to his girlfriend. Mauro 

drove his girlfriend to the insurance office to report the tractor as stolen. His girlfriend filled out 

a sworn proof of loss statement with the insurance company, which stated it was her policy and 

she was the only owner of the tractor. Mauro negotiated a $12,000 payout with the insurance 

company on the claim, and the insurance company issued the funds to Mauro’s girlfriend. 

When Mauro and his girlfriend broke up, Mauro contacted the insurance company and

informed them that the tractor was never stolen and was located on a friend’s property. The 

insurance company contacted law enforcement. During the investigation, law enforcement 

interviewed Mauro. Mauro explained how he and his girlfriend conspired to defraud the 

insurance company by hiding the tractor on the friend’s property and reporting it as stolen. 

The State charged Mauro with insurance fraud, Idaho Code §§ 41-293, 18-204, and 

obstructing an officer, I.C. § 18-705. The case proceeded to trial. Before trial began, the 

prosecutor filed proposed jury instructions. Mauro made no objections to the proposed 

instructions. After the district court finalized the instructions, Mauro stated he had no objections 

to the instructions. At the close of the trial, the district court instructed the jury. Jury Instruction

No. 17 read as follows:

In order for the defendant to be guilty of Insurance Fraud, the state must 

prove each of the following: 

1. On or about April 7, 2014 through April 25, 2014

2. in the state of Idaho 

3. the defendant JOSEPH ANTHONY MAURO

4. did aid and abet another in preparing or making any statement

5. that was presented to Farm Bureau Insurance of Idaho in support 

of a claim for payment of a benefit under an insurance policy

6. with the knowledge that the information was false as to a material 

issue of the claim, 

7. and with the intent to defraud or deceive Farm Bureau Insurance of 

Idaho

If any of the above has not been proven beyond a reasonable doubt, you 

must find the defendant not guilty. If each of the above has been proven beyond a 

reasonable doubt, then you must find the defendant guilty. 

In closing rebuttal argument, the prosecutor explained Jury Instruction No. 17, stating:
3

And when you look at Instruction 17, the knowledge element, with the knowledge 

that the information was false. Mr. Mauro assisted, solicited, procured [his

girlfriend’s] involvement in committing a crime. . . . 

. . . .

And so Instruction 17 doesn’t have anything in there about whether or not 

[his girlfriend] had knowledge. This is about the knowledge that Mr. Mauro had, 

that, when he assisted her, when he drove her to the insurance company to file 

that report, his knowledge, the information he provided her, that he reported the 

tractor stolen and that he filed the police report--his knowledge that that was false. 

It does not ask you to consider her knowledge. 

Mauro’s trial counsel objected, stating: “I believe is a misstatement of the law.” The 

court responded: “Well, the instructions do set forth the law. I’ll let the jury sort that out.” The 

prosecutor continued her closing rebuttal argument, stating: 

So you can go back and look through the jury instructions. You can look through 

the aiding and abetting, but nowhere in this elements Instruction No. 17 does it 

require that [his girlfriend] be convicted, be charged with any crime. [His

girlfriend’s] not on trial here today. It’s Mr. Mauro. This is his trial. This has 

nothing to do whether or not she was convicted of this crime. 

The jury found Mauro guilty of insurance fraud and obstructing an officer. After the 

verdict, Mauro filed a motion for judgment notwithstanding the verdict and a motion for mistrial. 

The district court construed the motions as a motion for acquittal and a motion for a new trial, 

and denied both motions. The district court sentenced Mauro to a unified sentence of four years, 

with one year determinate, suspended the sentence, and placed Mauro on probation for two 

years. Mauro timely appeals. 

II. 

STANDARD OF REVIEW

Although our system of criminal justice is adversarial in nature, and the prosecutor is 

expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and 

required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in 

reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id. 

A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous 

objection we determine factually if there was prosecutorial misconduct, then we determine 

whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055 

(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). Where a 

defendant meets his or her initial burden of showing that a violation occurred, the State has the 

burden of demonstrating to the appellate court beyond a reasonable doubt that the constitutional 
4

violation did not contribute to the jury’s verdict. State v. Perry, 150 Idaho 209, 227, 245 P.3d 

961, 979 (2010). A conviction will not be set aside for small errors or defects that have little, if 

any, likelihood of having changed the results of the trial. State v. Pecor, 132 Idaho 359, 367-68, 

972 P.2d 737, 745-46 (Ct. App. 1998).

III.

ANALYSIS

Mauro argues that the prosecutor committed prosecutorial misconduct during closing 

rebuttal argument when she misstated the law by asserting the knowledge element of the crime 

required the jury to consider only Mauro’s knowledge, not his girlfriend’s knowledge. The State 

asserts the prosecutor did not misstate the law because under the applicable law, the State was 

only required to prove Mauro’s criminal intent. 

Before closing arguments, the district court instructed the jury pursuant to Jury 

Instruction No. 17. The knowledge element of Jury Instruction No. 17 required the jury to find 

that Mauro did aid and abet another in preparing or making a statement to the insurance company 

and when doing so, Mauro knew the information was false. During closing rebuttal argument, 

the prosecutor stated that the jury was not required to determine the knowledge of Mauro’s 

girlfriend. Rather, the prosecutor stated the jury was only required to determine whether Mauro 

knew the information given to the insurance company by his girlfriend was false. 

Closing argument serves to sharpen and clarify the issues for resolution by the trier of 

fact in a criminal case. Phillips, 144 Idaho at 86, 156 P.3d at 587. Its purpose is to enlighten the 

jury and to help the jurors remember and interpret the evidence. Id.; State v. Reynolds, 120 

Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides have traditionally been 

afforded considerable latitude in closing argument to the jury and are entitled to discuss fully, 

from their respective standpoints, the evidence and the inferences to be drawn therefrom. State 

v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144 Idaho at 86, 156 P.3d at 

587. It is prosecutorial misconduct for a prosecutor to misstate the law during closing argument. 

State v. Coffin, 146 Idaho 166, 170, 191 P.3d 244, 248 (Ct. App. 2008). 

A person is guilty of insurance fraud if he:

with intent to defraud or deceive an insurer assists, abets, solicits, or conspires 

with another to prepare or make any statement that is intended to be presented to 

any insurer, producer, practitioner or other person, in connection with, or in 

support of, any claim for payment or other benefit, knowing that such statement 
5

contains false, incomplete, or misleading information concerning any fact or thing 

material to such claim. 

All persons concerned in the commission of a crime, whether they directly commit the act 

constituting the offense or aid and abet in its commission, are principals in any crime so 

committed. I.C. § 18-204. In order to be convicted under I.C. § 18-204 for aiding and abetting 

the commission of a crime, a person must act in such a way as to facilitate, promote, encourage, 

solicit, or incite the actions of the crime. State v. Mitchell, 146 Idaho 378, 383, 195 P.3d 737, 

742 (Ct. App. 2008). However, mere knowledge of a crime or assent or acquiescence in its 

commission does not create accomplice liability through aiding and abetting. Id. Instead, aiding 

and abetting requires some proof that the accused either participated in or assisted, encouraged, 

solicited, or counseled the crime, State v. Rivas, 129 Idaho 20, 24, 921 P.2d 197, 201 (Ct. App. 

1996), or some manifestation of “a sharing by the aider and abettor of the criminal intent of the 

perpetrator.” State v. Gonzalez, 134 Idaho 907, 909, 12 P.3d 382, 384 (Ct. App. 2000); State v. 

Hickman, 119 Idaho 366, 367, 806 P.2d 959, 960 (Ct. App. 1991). Because there is no 

distinction between principals and aiders and abettors, a charging document need only allege 

facts necessary to convict a principal. State v. Adamcik, 152 Idaho 445, 462, 272 P.3d 417, 434 

(2012). A defendant is presumed to know that the charge includes both committing the crime as 

the principal and acting as an accessory before the fact. Id. Thus, the aider and abettor must 

have the requisite intent and have acted in some manner to bring about the intended result. 

Gonzalez, 134 Idaho at 909, 12 P.3d at 384. 

In State v. Mitchell, 146 Idaho 378, 195 P.3d 737 (Ct. App. 2008), this Court explained 

that an aider and abettor must have the requisite intent required by statute as if he was the 

principal. Id. at 384, 195 P.3d at 743. There, the defendant was charged with aggravated 

battery, under an aiding and abetting theory, robbery, and burglary. Id. at 381, 195 P.3d at 740. 

At trial, one of Mitchell’s co-defendants testified the plan was to rob the victim because Mitchell 

knew the victim had $5,000 cash. Id. The co-defendant testified Mitchell waited in the car while 

the co-defendants robbed the victim. During the robbery, the victim was shot. Id. Mitchell 

provided the co-defendants with a loaded gun. Id. at 384, 195 P.3d at 743. The rare ammunition 

used in the robbery was found at Mitchell’s apartment. Id. Mitchell argued on appeal that there 

was insufficient evidence for the jury to find Mitchell had the requisite intent to commit the

aggravated battery. Id. at 383, 195 P.3d at 742. Mitchell argued that because shooting the victim 
6

was not part of the plan and because Mitchell was not the shooter, the State could not prove that 

Mitchell had the requisite intent--that of a principal--for aggravated battery. Id. 

The Court reasoned that to find Mitchell guilty of aggravated battery under an aiding and 

abetting theory, the State was required to show Mitchell knowingly aided and abetted the use of 

a deadly weapon to unlawfully and intentionally cause bodily harm to the victim. Id. at 384, 195 

P.3d at 743. In reviewing the sufficiency of the evidence, the Court analyzed whether Mitchell’s 

knowledge was sufficient to find Mitchell acted as a principal. Id. at 383-84, 195 P.3d at 742-43. 

The Court held there was sufficient evidence for the jury to infer that Mitchell knowingly 

provided a weapon with the intent that it be used against someone during the robbery and,

therefore, Mitchell had the requisite intent of a principal to commit an aggravated battery. Id. at 

384, 195 P.3d at 743. 

Similar to Mitchell, Mauro was charged with insurance fraud as a principal, which 

includes charging him as an aider and abettor. The material elements of I.C. § 41-293(b) require 

the State to prove that Mauro, as if he were a principal, knew the statement presented to the 

insurance company was false. See I.C. § 41-293(b). Thus, the State had to prove that Mauro had 

the intent to commit insurance fraud and acted in furtherance of that intent by aiding and abetting

his girlfriend to commit insurance fraud. In other words, the State had to establish that Mauro 

either “participated in or assisted, encouraged, solicited, or counseled the crime.” Rivas, 129 

Idaho at 24, 921 P.2d at 201. In this case, the State met that burden. Here, Mauro told the 

insurance company that he actively participated in hiding the tractor with his girlfriend, he drove 

his girlfriend to the insurance company to file the claim, and he then negotiated a settlement on 

behalf of his girlfriend. With that quantum of evidence, the State established the Mauro 

participated in or assisted in committing insurance fraud, which the State was required to prove. 

Given that, the prosecutor did not misstate the law in closing rebuttal argument. The 

prosecutor stated Jury Instruction No. 17 required the jury to determine whether Mauro knew the 

information about the tractor given to the insurance company by his girlfriend was false; it did 

not require the jury to determine his girlfriend’s knowledge. Because the State was only required 

to prove Mauro’s intent, the prosecutor did not misstate the law. Thus, there was no 
7

prosecutorial misconduct and we need not address Mauro’s argument that any error was 

harmless.1

IV.

CONCLUSION

The prosecutor did not commit prosecutorial misconduct because her closing rebuttal 

argument correctly stated the applicable law. The district court’s judgment of conviction is 

affirmed. 

Judge GUTIERREZ and Judge MELANSON CONCUR. 

 1 To the extent Mauro’s objection was an objection to Instruction No. 17, Mauro must 

demonstrate fundamental error because he did not raise an objection to the jury instructions in 

the district court. Mauro does not allege or argue in his brief that the unobjected-to error was 

fundamental error. Similarly, Mauro did not object to the lack of a jury instruction regarding his

girlfriend’s intent. A party waives an issue on appeal if either authority or argument is lacking. 

State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). As such, Mauro has waived this 

issue on appeal.