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Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
Donald Houser was convicted of aggravated assault on his brother, Douglas Houser. The trial court ordered Donald to pay restitution to Douglas. On appeal, Donald asserts that the restitution award is excessive because some of Douglas's lost wages were not caused by the assault and because some categories of Douglas's claims were not awardable under the governing statute.
Donald was convicted of aggravated assault for threatening his brother with a hunting knife. The State requested an award of restitution to Douglas for wages lost due to Douglas's attendance of court proceedings in the case. Douglas submitted a record of the days he claimed to have taken off work to attend the proceedings. It indicated that Douglas missed work upon attending nine proceedings: (1) an arraignment on August 23, 2011; (2) a bond hearing on August 31, 2011; (3) a preliminary hearing on September 6, 2011; (4) the felony arraignment on September 12, 2011; (5) a no-contact hearing on September 26, 2011, a civil matter wherein
Donald's wife sought an order for protection from Douglas; (6) a pretrial conference on November 14, 2011; (7) a status conference on December 12, 2012; (8) an additional status conference on January 23, 2012; and (9) both trial days, February 14-15, 2012. Douglas also indicated that he did not go to work the day after the incident, August 22, 2011, before Donald was taken into custody, and that he took two additional days off work because he was emotionally shaken by the assault. The total was 120 hours off of work which, at Douglas's claimed wage rate of $10.40 per hour, resulted in $1,248 in lost wages.
At a restitution hearing, Douglas testified that he took an entire day off of work for each court proceeding he attended, although most of the hearings were quite short in length, with many being less than an hour long. When asked why he took off the entire day, Douglas said that his employer told him to take the whole day so as to avoid paying for transportation costs associated with going back and forth from work to court.
Donald argued that Douglas was not entitled to any restitution as to several of the days and only limited restitution as to all but the trial days. Donald argued that: (1) Douglas's presence was not required at most of the hearings; (2) while Douglas might be entitled to some time for some of the hearings he attended, he was not entitled to a whole day for short hearings; (3) the three days on which Douglas neither attended work nor a court hearing were not compensable under the statute because that would essentially grant restitution for emotional distress; (4) Douglas did not actually attend the November 14, 2011, pretrial conference; and (5) the no-contact order hearing was essentially unrelated to the alleged criminal behavior.
The trial court rejected most of Donald's objections and awarded restitution for most of the claimed lost wages. The district court denied restitution for the two days Douglas was emotionally shaken after Donald was arrested, but did award restitution for the day after the incident when Donald had not yet been arrested. The district court also denied the restitution for the day Douglas attended the hearing on the request for a no-contact order. The trial court concluded that wage losses for the other days were covered by the restitution statute. As to Douglas taking entire days off work to attend short hearings, the trial court appears to have accepted the argument that the travel costs would have been burdensome. The court also added that, from Douglas's perspective, it would not be clear how long each proceeding might take and thus it was reasonable to take off an entire day. The amount ultimately awarded was $936 for ninety hours of time loss.
On appeal, Donald argues that the trial court erred by granting restitution for the day after the criminal conduct when Donald had not yet been arrested (August 22, 2011); that the court erred in finding that Douglas attended the pretrial conference on November 14, 2011; that restitution ought not have been granted for proceedings that Douglas was not required to attend because where a victim's attendance at a hearing is optional, it is not caused by the criminal conduct and thus not covered by the restitution statute; and that restitution is inappropriate for hours when Douglas took off entire days rather than attend work when he could because this also amounted to a choice and was not caused by his criminal behavior.
Idaho Code § 19-5304(2) authorizes the sentencing court to order a defendant to pay restitution for economic loss to the victim. " Economic loss" includes, among other things, lost wages and direct out-of-pocket losses or expenses, such as medical expenses, resulting from the criminal conduct, but it excludes " less tangible damage such as pain and suffering, wrongful death or emotional distress." I.C. § 19-5304(1)(a). The sentencing court has discretion to determine whether restitution is appropriate and, if so, to set the amount. ...