IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 41892
STATE OF IDAHO, )
) 2014 Opinion No. 102
Plaintiff-Respondent, )
) Filed: December 4, 2014
v. )
) Stephen W. Kenyon, Clerk
SHEPHERD REALE, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Jerome County. Hon. John K. Butler, District Judge.
Judgment of conviction and unified sentence of fifteen years, with a minimum
period of confinement of three years, for sexual abuse of a child under sixteen
years of age, affirmed; order of restitution, affirmed.
Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
________________________________________________
MELANSON, Judge
Shepherd Reale appeals from his judgment of conviction and unified sentence of fifteen
years, with a minimum period of confinement of three years, for sexual abuse of a child under
sixteen years of age and from the district court’s order of restitution. Specifically, Reale alleges
that his sentence is excessive and that the district court abused its discretion by awarding
restitution to the victim’s mother for lost wages resulting from her taking time off from her
nightshift nursing job to sleep before court appearances. For the reasons set forth below, we
affirm.
I.
FACTS AND PROCEDURE
Reale was charged with lewd conduct with a minor child under sixteen years of age and
sexual abuse of a child under sixteen years of age. Pursuant to a plea agreement, Reale pled
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guilty to sexual abuse of a child under sixteen years of age, I.C. § 18-5601(1)(b), and the state
dismissed the lewd conduct charge. Reale was sentenced to a unified term of fifteen years, with
a minimum period of confinement of three years.
The state sought an order of restitution, including $3,315.68 for the lost wages of the
victim’s mother. At the restitution hearing, the mother testified that she missed all or part of
several twelve-hour shifts working as a night charge nurse, totaling ninety-two hours at an hourly
rate of $36.04. She further testified that she took the time off from her 7 p.m. to 7:30 a.m. shift
to be rested and ready to attend scheduled counseling sessions and court proceedings, most of
which occurred between 9 a.m. and 12 p.m. Reale argued that it was not “foreseeable that
someone would miss a 12-hour shift the night before a court hearing in order to be there for that
hearing in the morning.” The district court subsequently entered a judgment of restitution, which
included an award of $3,315.68 to the victim’s mother for lost wages. Reale appeals.
II.
ANALYSIS
Reale argues that the district court abused its discretion in awarding the victim’s mother
restitution for her lost wages as a result of missing all or part of several night shifts so that she
could be rested and prepared for court proceedings the following day. Reale alternatively argues
that, even if time taken off work to rest before court proceedings is compensable as lost wages,
the district court abused its discretion in awarding the full amount of the requested restitution, as
there was not substantial evidence justifying restitution for the five instances where the mother
missed her entire twelve-hour shift prior to attending court proceedings. Reale also contends that
the district court abused its discretion by imposing an excessive sentence.
A. Excessive Sentence
Reale contends that his unified sentence of fifteen years, with a minimum period of
confinement of three years, is excessive. An appellate review of a sentence is based on an abuse
of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000).
Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable and,
thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992);
State v. Ozuna, 155 Idaho 697, 704, 316 P.3d 109, 116 (Ct. App. 2013). A sentence may
represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case.
State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982); Ozuna, 155 Idaho at 704, 316 P.3d at
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116. A sentence of confinement is reasonable if it appears at the time of sentencing that
confinement is necessary “to accomplish the primary objective of protecting society and to
achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a
given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an
appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct
an independent review of the record, having regard for the nature of the offense, the character of
the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653
P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the
defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
Reale argues that the district court failed to give adequate consideration to mitigating
factors, resulting in an excessive sentence. The mitigating factors he alleges the district court
failed to consider include his low risk of recidivism, history of being sexually abused as a child,
physical health issues, and grief over his wife’s illness and death. The record does not support
Reale’s claims.
At sentencing, the district court emphasized that its primary sentencing goal was
protecting society, noting the disturbing nature of Reale’s conduct with the eight-year-old victim.
The district court acknowledged that the psychosexual evaluation in the presentence
investigation report concluded that Reale was a low risk to reoffend. However, the district court
observed that the evaluation also indicated that Reale did not think he had a problem or needed
treatment and failed to accept full responsibility for his conduct. Reale minimized and
rationalized his conduct and even went so far as to accuse the victim’s parents of being “after
him” and “setting him up” for the offense by putting Reale in a situation in which he was able to
commit the offense. The evaluator also noted that Reale does not believe he needs treatment for
his sexual behavior. Moreover, the district court noted that Reale had committed similar conduct
in the past with a ten-year-old girl. Thus, although he had no prior convictions, this was not
Reale’s first sexual offense. The district court further considered Reale’s own experience of
having been sexually abused as a child, his health problems, and his emotional difficulties
associated with his wife’s illness and eventual death. However, the district court was not
required to ascribe as much weight and significance to these allegedly mitigating factors as Reale
contends. Instead, the district court determined that the nature of the offense, Reale’s potential
problems with treatment in the community, and Reale’s prior similar conduct outweighed the
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allegedly mitigating factors and necessitated a sentence that would protect society and
correspond with the seriousness of the offense.
The issue before this Court is not whether the sentence is one that we would have
imposed, but whether the sentence is plainly excessive under any reasonable view of the facts.
Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable minds might differ as to whether the
sentence is excessive, we are not free to substitute our view for that of the district court. Id.
Having thoroughly reviewed the record in this case, we cannot say that the sentence is plainly
excessive under any reasonable view of the facts. Therefore, the district court did not abuse its
discretion, and this Court will not disturb the district court’s sentencing decision.
B. Restitution Award
Idaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay
restitution for economic loss to the victim of a crime. “Victim” is defined to include the
“immediate family of a minor” who is the actual victim of the defendant’s criminal conduct.
I.C. § 19-5304(1)(e)(i). “Economic loss” includes, among other things, “lost wages, and direct
out-of-pocket losses or expenses . . . resulting from the criminal conduct.” I.C. § 19-5304(1)(a).
The decision of whether to order restitution, and in what amount, is within the discretion of a
trial court, guided by consideration of the factors set forth in I.C. § 19-5304(7) and by the policy
favoring full compensation to crime victims who suffer economic loss. State v. Richmond, 137
Idaho 35, 37, 43 P.3d 794, 796 (Ct. App. 2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d
804, 806 (Ct. App. 1989). Thus, we will not overturn an order of restitution unless an abuse of
discretion is shown. Richmond, 137 Idaho at 37, 43 P.3d at 796. When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989).
To meet the second and third requirements of this analysis, the trial court must base the
amount of restitution upon the preponderance of evidence submitted by the prosecutor,
defendant, victim, or presentence investigator. I.C. § 19-5304(6); State v. Lombard, 149 Idaho
819, 822, 242 P.3d 189, 192 (Ct. App. 2010). Thus, the state must prove, by a preponderance of
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the evidence, a causal relationship between the defendant’s criminal conduct and the damages
suffered by the victim. I.C. § 19-5304(7); State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398,
401 (2011); State v. Hill, 154 Idaho 206, 212, 296 P.3d 412, 418 (Ct. App. 2012). Causation
consists of actual cause and true proximate cause. Corbus, 150 Idaho at 602, 249 P.3d at 401;
State v. Lampien, 148 Idaho 367, 374, 223 P.3d 750, 757 (2009). Actual cause refers to whether
a particular event produced a particular consequence. Corbus, 150 Idaho at 602, 249 P.3d at
401; Lampien, 148 Idaho at 374, 223 P.3d at 757. A “but for” test of actual cause is used in
circumstances where there is only one cause or where two or more possible causes were not
acting concurrently. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223
P.3d at 757. Reale does not dispute that his criminal conduct was the actual cause of the
mother’s economic loss.
Proximate cause focuses on the foreseeability of the injury, requiring us to determine
whether the injury and manner of occurrence were so highly unusual that we can say, as a matter
of law, that a reasonable person, making an inventory of the possibilities of harm that his or her
conduct might produce, would not have reasonably expected the injury to occur. Corbus, 150
Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757; State v. Houser, 155
Idaho 521, 525, 314 P.3d 203, 207 (Ct. App. 2013). The causal chain linking a defendant’s
criminal conduct to the economic loss suffered by a victim may be severed by an independent act
or force constituting an intervening, superseding cause. Corbus, 150 Idaho at 602, 249 P.3d at
401; Lampien, 148 Idaho at 374, 223 P.3d at 757; Houser, 155 Idaho at 525, 314 P.3d at 207. In
general, an intervening, superseding cause replaces the defendant’s act as the proximate cause of
the victim’s injury. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374-75,
223 P.3d at 757-58; Houser, 155 Idaho at 525, 314 P.3d at 207. However, to relieve a defendant
of criminal liability, an intervening, superseding cause must be an unforeseeable and
extraordinary occurrence. Corbus, 150 Idaho at 602-03, 249 P.3d at 401-02; Lampien, 148 Idaho
at 375, 223 P.3d at 758; Houser, 155 Idaho at 525, 314 P.3d at 207. The defendant remains
criminally liable if either the possible consequence might reasonably have been contemplated or
the defendant should have foreseen the possibility of harm of the kind that could result from his
or her act. Corbus, 150 Idaho at 602-03, 249 P.3d at 401-02; Lampien, 148 Idaho at 375, 223
P.3d at 758; Houser, 155 Idaho at 525, 314 P.3d at 207.
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The determination of the amount of restitution, which includes the issue of causation, is a
question of fact for the trial court. Corbus, 150 Idaho at 602, 249 P.3d at 401; State v. Hamilton,
129 Idaho 938, 943, 935 P.2d 201, 206 (Ct. App. 1997). The district court’s factual findings
with regard to restitution will not be disturbed on appeal if supported by substantial evidence.
Corbus, 150 Idaho at 602, 249 P.3d at 401; Lombard, 149 Idaho at 822, 242 P.3d at 192.
Substantial evidence is such relevant evidence as a reasonable mind might accept to support a
conclusion. State v. Straub, 153 Idaho 882, 885, 292 P.3d 273, 276 (2013).
Reale asserts that there was not substantial evidence establishing that his criminal
conduct was the proximate cause of the mother’s lost wages, as her choice to sleep before court
proceedings instead of working was an intervening, superseding cause that severed the causal
chain. Additionally, Reale argues that the mother’s time off work did not constitute an economic
loss, as the mother did not miss work to attend a court proceeding occurring at the same time.
Entitlement to restitution for lost wages does not require that the court proceeding and
work hours coincide. Instead, our analysis focuses on determining whether there is a causal link
between the defendant’s conduct and the economic loss suffered. Under the broad, nonexclusive
definition of “economic loss” in I.C. § 19-5304(1)(a), expenses and losses incurred that are
analogous to lost wages are compensable through restitution. See State v. Olpin, 140 Idaho 377,
379, 93 P.3d 708, 710 (Ct. App. 2004) (holding that a loss of productivity resulting from
employees having to take time away from their normal duties to investigate the extent of the
defendant’s criminal conduct was closely analogous to lost wages and was compensable under
the statute’s broad definition of economic loss); State v. Russell, 126 Idaho 38, 39, 878 P.2d 212,
213 (Ct. App. 1994) (holding that, due to the broad definition of economic loss, time spent in
court by a self-employed victim during which that person could have been pursuing his vocation
constituted an economic loss by analogy to lost wages). Moreover, necessary expenses or losses
that the victim incurred in order to address the consequences of the criminal conduct are also
included as economic loss. State v. Gonzales, 144 Idaho 775, 778, 171 P.3d 266, 269 (Ct. App.
2007); State v. Parker, 143 Idaho 165, 167, 139 P.3d 767, 769 (Ct. App. 2006). Court
proceedings are obvious consequences of criminal conduct. Thus, a victim is entitled to lost
wages for time off that was reasonably necessary to enable him or her to attend court
proceedings, even if that time off does not coincide with the actual court proceeding. See
Houser, 155 Idaho at 528-29, 314 P.3d at 210-11 (recognizing that a victim may be compensated
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for lost wages for travel time to and from court proceedings and time spent waiting for court
proceedings to begin).
Due to the nature of the mother’s job as a night charge nurse, her work hours of 7 p.m. to
7:30 a.m. would never coincide with scheduled court proceedings. Indeed, most of the court
proceedings in Reale’s case occurred between 9 a.m. and 12 p.m. A defendant may not avoid
restitution liability simply due to a victim’s irregular work hours that do not coincide with the
court’s hours of operation. Such a stance would severely undermine the policy favoring full
compensation to crime victims who suffer economic loss. Moreover, it would lead to perverse
results, such as requiring that the mother in this case choose between attending court proceedings
that involve the man charged with molesting her daughter or sleeping, as she could not readily or
reasonably do both. Instead, as we recognized in Olpin, Russell, and Houser, individual work
circumstances will determine whether specific instances of missed work time constitute
economic loss that is compensable as restitution. As noted in Houser, “reasonableness is the
touchstone.” Id. at 529, 314 P.3d at 211.
In this case, it would not be reasonable to expect the victim’s mother to attend court
proceedings with little to no sleep after working a demanding job for twelve hours. On the
contrary, as noted by the district court, the time the mother took off of work was reasonably
necessary to enable her to attend court proceedings. The mother did her best to avoid taking off
more time than necessary, switching shifts when able and taking her time off in four-hour blocks
when possible. Only when she was unable to switch shifts did she take the time for which she
claimed restitution. Such time off was necessary to allow the mother to adequately and
reasonably address the consequences of Reale’s criminal conduct by attending the court
proceedings resulting therefrom. Moreover, it was reasonably foreseeable that, by molesting the
mother’s minor daughter, the mother would want, and occasionally need, to attend court
proceedings both with and without her minor daughter. It was also reasonably foreseeable that
the mother would make reasonable accommodations--including time off from work to rest and
prepare--to be able to adequately attend and participate in those proceedings. As a result,
substantial evidence supported the district court’s determination that Reale’s conduct was the
true proximate cause of the mother’s lost wages.
In addition, the mother’s decision to take the time off work reasonably necessary to allow
her to attend the court proceedings was not an intervening, superseding cause, as the mother’s
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missed work time was neither unforeseeable nor extraordinary. Just as it is reasonably
foreseeable that a crime victim may want to be present at any proceeding that substantially
impacts the case, the victim’s relationship with the perpetrator, or any further risk to the victim,
it is just as foreseeable that the mother of a child victim would want or need to attend the same
court proceedings to provide testimony or to support, assist, and comfort her child in
understanding and navigating the unfamiliar and intimidating legal proceedings. See Houser,
155 Idaho at 528, 314 P.3d at 210 (holding that a victim’s choice to attend most or all court
proceedings was not an intervening, superseding cause that severed the link between the
defendant’s criminal conduct and the victim’s lost wages). Accordingly, the mother’s decision
to take the time off work reasonably necessary to accommodate her attendance at court
proceedings was not an intervening, superseding cause.
Finally, Reale contends that, even if the mother’s lost wages are compensable under the
restitution statute as economic loss, there was not substantial evidence to support the full award.
This, he claims, is because it was not reasonably necessary for the mother to take her entire
twelve-hour shift off work on the five occasions when she was unable to switch shifts. Reale
also alleges that the actions of the third parties who refused to switch shifts with the mother
constituted intervening, superseding causes that severed the causal chain between his conduct
and the mother’s lost wages.
In the absence of supporting evidence, a court may not presume that loss of an entire
work day is justified for every attendance at a hearing regardless of its duration or time of day.
Houser, 155 Idaho at 529, 314 P.3d at 211. However, some work circumstances, if supported by
evidence, justify missing entire work days to enable a victim to attend court proceedings. See id.
at 529, 314 P.3d at 211 (discussing that in some types of employment, a period of temporary
absence might require the employer to have an alternate employee come to the workplace and
cover that portion of the work, making it preferable to have the employee miss a full day as
opposed to a partial day). In the unusual circumstances presented in this case, it was not
unforeseeable that the mother would occasionally be unable to switch shifts, resulting in her
having to miss an entire shift. Any working person knows the difficulties attendant with
scheduling changes, which are only amplified in demanding and irregular hour jobs such as the
mother’s. There was also substantial evidence indicating that taking full days off was reasonably
necessary when they occurred. The district court noted that the mother “did her best to find
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coverage for her blocks of time to avoid taking off more time than necessary to be prepared and
attentive in court.” This was supported by the mother’s testimony that she made every effort to
find people to switch shifts and that doing so was difficult, as there were very few people
available to fill her position. What constitutes reasonable justification for missing an entire shift
changes when dealing with irregular work hours that do not coincide with court proceedings. In
the current case, regardless of whether the mother was able to switch shifts or not, her reason for
missing work remained constant--replacing the sleep time that would be missed by going to the
court proceedings in order to be well rested and prepared for those proceedings. This reason, in
light of the mother’s efforts to avoid missing full shifts, justifies the five instances where missing
her full work shift was unavoidable. Accordingly, the mother’s inability to switch shifts,
resulting in her having to take off full shifts in five instances, was neither unreasonable nor an
unforeseeable and extraordinary occurrence constituting an intervening, superseding cause.
We hold that substantial evidence supported the district court’s decision to award
restitution as well as the amount awarded. As a result, we will not disturb the district court’s
award of restitution.
III.
CONCLUSION
Reale has failed to show that his sentence was excessive. Additionally, substantial
evidence supported the district court’s finding that Reale’s criminal conduct was the proximate
cause of the mother’s lost wages. Accordingly, Reale’s judgment of conviction and sentence for
sexual abuse of a child under sixteen years of age and the order of restitution and are affirmed.
Judge GRATTON, CONCURS.
Chief Judge GUTIERREZ, CONCURS IN PART AND DISSENTS IN PART.
Shepherd Reale pleaded guilty to sexual abuse of a child under the age of sixteen years.
Following a restitution hearing, the district court awarded restitution in favor of the victim’s
mother that compensated the mother for time she took off work to rest before the victim’s
CARES 1 interview and examination and before various court hearings. Based on the evidence
presented at the restitution hearing, I conclude that the time the mother took off work to rest was
1
Children at Risk Evaluation Services (CARES) is a clinic where children suspected of
being abused are physically examined and interviewed. State v. Gain, 140 Idaho 170, 172, 90
P.3d 920, 922 (Ct. App. 2004).
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not an economic loss under the restitution statute. Therefore, I respectfully dissent from
part II(B) of the majority opinion. 2
Relevant to this appeal, the mother of the victim explained at the restitution hearing that
she was seeking restitution for time that she took off work to rest before taking the victim to a
CARES interview and examination and before attending various court hearings, each of which
occurred outside of the mother’s normal working hours. The mother is a nurse who works three
twelve-hour shifts per week. At the restitution hearing, she provided a list of events for which
she took time off, based on her records, that she was seeking restitution for; this exhibit was
admitted into evidence. I have summarized the exhibit and the mother’s testimony in the
following table of the time the mother took off work to rest:
Item Date, Time, and Purpose of the Event Hours Off Work
1 August 1, 2013 - 8:30 a.m. - CARES interview 8 (11:00 p.m. - 7:00 a.m.)
2 August 5, 2013 - (unknown) - CARES examination 4 (3:00 a.m. - 7:00 a.m.)
3 August 12, 2013 - 3:00 p.m. - preliminary hearing* 4 (3:00 a.m. - 7:00 a.m.)
4 August 29, 2013 - 11:00 a.m. - preliminary hearing 4 (3:00 a.m. - 7:00 a.m.)
5 September 30, 2013 - 9:00 a.m. - arraignment 12 (7:00 p.m. - 7:00 a.m.)
6 October 2, 2013 - 9:00 a.m. - hearing 12 (7:00 p.m. - 7:00 a.m.)
7 November 4, 2013 - 9:00 a.m. - bond reduction hearing 12 (7:00 p.m. - 7:00 a.m.)
8 December 9, 2013 - (unknown) - pretrial conference* 12 (7:00 p.m. - 7:00 a.m.)
9 December 13, 2013 - 9:00 a.m. - pretrial conference 12 (7:00 p.m. - 7:00 a.m.)
10 February 10, 2014 - 9:00 a.m. - sentencing* 8 (11:00 p.m. - 7:00 a.m.)
11 February 11, 2014 - 1:00 p.m. - sentencing 4 (7:00 p.m. - 11:00 p.m.)
Total 92 hours
Note: an asterisk represents a hearing that was cancelled or rescheduled on the day of the hearing
Following the restitution hearing, the district court entered a judgment and order awarding the
mother restitution for the value of each of the ninety-two hours she claimed.
In this case, Reale contends that the restitution statute “does not contemplate awarding
victims lost wages for taking time off work to be rested or prepared before attending court
proceedings.” As an alternative, Reale asserts that the mother’s “choice to spend time resting
instead of going to work was an intervening, superseding cause that severed the causal link.” As
another alternative, Reale argues that even if compensation for time off while resting is an
economic loss proximately caused by Reale’s criminal conduct, the ultimate award is not based
on substantial evidence. The State counters that the time off work to rest was proximately
caused by Reale’s criminal conduct and that the restitution award is supported by substantial
2
I concur in part II(B) of the majority opinion addressing Reale’s contention that his
sentence was excessive.
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evidence. The State, however, does not explicitly address Reale’s first contention, which is that
time off work to rest is not compensable under the restitution statute.
The restitution statute provides restitution for economic loss, I.C. § 19-5304(2), and
economic loss is defined by the statute:
“Economic loss” includes, but is not limited to, the value of property
taken, destroyed, broken, or otherwise harmed, lost wages, and direct out-of-
pocket losses or expenses, such as medical expenses resulting from the criminal
conduct, but does not include less tangible damage such as pain and suffering,
wrongful death or emotional distress.
I.C. § 19-5304(1)(a). We have previously explained that economic loss “includes necessary
expenses or losses that the victim incurred in order to address the consequences of the criminal
conduct.” State v. Parker, 143 Idaho 165, 167, 139 P.3d 767, 769 (Ct. App. 2006) (emphasis
added).
The issue of whether time taken off work to rest is an “economic loss” involves the
interpretation of the restitution statute, I.C. § 19-5304. This raises a question of law over which
this Court exercises free review. State v. McKeeth, 136 Idaho 619, 628, 38 P.3d 1275, 1284 (Ct.
App. 2001) (“On appeal, McKeeth contends that the award of ‘potential economic losses’ to the
Crime Victims Compensation Fund is not permitted under the restitution statute. The argument
raised by McKeeth requires that we interpret the language of I.C. § 19-5304.”); see also State v.
Straub, 153 Idaho 882, 889, 292 P.3d 273, 280 (2013) (holding that “actual out-of-pocket
medical expenses and lost wages up to the date of sentencing may be included in a restitution
order”); Parker, 143 Idaho at 168, 139 P.3d at 770 (concluding that attorney fees related to a
victim’s civil action were not an economic loss).
As a matter of law, this Court has consistently held that the victim’s time spent appearing
and testifying at a restitution hearing, when the victim would otherwise be working, is an
economic loss because it is analogous to lost wages. E.g., State v. Olpin, 140 Idaho 377, 379, 93
P.3d 708, 710 (Ct. App. 2004); State v. Russell, 126 Idaho 38, 39, 878 P.2d 212, 213 (Ct. App.
1994) (per curiam). The analogy holds because the time taken off to testify is a necessary loss
the victim incurred in order to address the consequences of the criminal conduct. See Parker,
143 Idaho at 167, 139 P.3d at 769.
This appeal, however, does not deal with time spent by the victim testifying; rather, it
involves time spent resting before an event or hearing, when the victim would otherwise be
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working, even though the hearing or other event would occur during nonworking hours. In order
to be an economic loss, the time used by the victim to rest, when the victim would otherwise be
working, must be necessary for the victim to address the consequences of the criminal conduct.
For the rest time to be necessary for the victim to address the consequences of the criminal
conduct, I conclude that the victim’s active participation must be required at the hearing or event.
Therefore, an economic loss occurs when the victim takes time off work to rest in order to
participate in hearings or other events that require the victim’s active participation.
The prosecutor, here, did not present evidence of the fact that the mother actively
participated in (e.g., testified in) any of the events or hearings. Accordingly, the time the mother
took off work to rest before the court hearings was not an economic loss to the mother, as
defined by the restitution statute.
In summary, I conclude that an economic loss occurs when the victim takes time off work
to rest in order to participate in hearings or other events that require the victim’s active
participation. Because the evidence presented did not reveal that the mother’s active
participation in any of the hearings or events was necessary to address the consequences of
Reale’s criminal conduct, I would hold that the mother did not suffer an economic loss, as
defined by the restitution statute, and was not entitled to restitution. Accordingly, I respectfully
dissent.
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