2014 Opinion No. 102
As Amended April 1, 2015.
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. Judge GRATTON, CONCURS. Chief Judge GUTIERREZ, CONCURS IN PART AND DISSENTS IN PART.
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.
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 guilty to sexual abuse of a child under sixteen years of age, I.C. § 18-1506(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.
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 ...