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State v. Cunningham

Supreme Court of Idaho

February 21, 2019

STATE OF IDAHO, Plaintiff-Respondent,
JEREMY YORK CUNNINGHAM, Defendant-Appellant.

          Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Lynn G. Norton, District Judge.

         The district court's award of restitution is vacated. The case will not be remanded.

          Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Justin Curtis argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Theodore S. Tollefson argued.

          BRODY, JUSTICE.

         This case centers upon whether the State presented substantial evidence to the district court to support an award of restitution for costs actually incurred by the State in prosecuting Cunningham for drug charges. This is the second time this case is on appeal. In the first appeal, this Court vacated the district court's award of restitution and remanded the case. After conducting a second restitution hearing and hearing live testimony from an administrative assistant with the Ada County prosecuting attorney's office, the district court awarded restitution to the State in the amount of $906.75 (over $1000 less than awarded at the first hearing). Cunningham appealed again, arguing that the district court erred in awarding restitution. On appeal, Cunningham contends that the district court improperly admitted hearsay evidence at the hearing and that the district court abused its discretion by awarding restitution without substantial evidence of the prosecution's costs. We agree. The district court's award of restitution is vacated and we decline to remand the case.


         Cunningham was found guilty of possession of a controlled substance by a jury. Thereafter, the State sought restitution for prosecution costs as authorized by Idaho Code section 37-2732(k), and was awarded $2, 240. Cunningham timely appealed the restitution award because the only evidence the State presented to support its request for prosecution costs was an unsworn written statement that was a boilerplate, fill-in-the-blank form featuring an unverified signature, the total number of attorney hours worked with no additional information about the tasks performed, and an hourly rate with no information as to how it was determined. On review, this Court vacated the restitution award for lack of evidence and remanded the case. State v. Cunningham, 161 Idaho 698, 390 P.3d 424 (2017). This Court held that "unsworn representations. . . do not constitute 'substantial evidence' upon which restitution" may be granted under Idaho Code section 37-2732(k), and explained that prosecution expenses actually incurred must generally be proven with "sworn statements that delineate the time spent performing specific tasks." Id. at 702, 390 P.3d at 428.

         On remand, the district court held another restitution hearing where the State called an administrative specialist with the Ada County Prosecuting Attorney's Office who testified to the prosecution's expenses. Through the administrative specialist, the State sought to admit into evidence a timesheet entitled "Drug Case Restitution," that delineated the number of hours worked by each attorney, had a description of the type of activity each attorney engaged in, and had the initials of each attorney next to the date worked. The timesheet had a column for the billing rate of each attorney that was blank. The timesheet was not signed or certified to be accurate, but it did contain a statement at the top of the attorney hours column that stated "[a]ttorney[s] must initial to approve time." The administrative specialist testified that she relied on these timesheets to ascertain the date each attorney worked on the drug case and compared it with payroll records to determine an hourly wage based on what each attorney was paid that month.

         Cunningham objected to the admission of the timesheet because the witness did not testify to the accuracy or validity of the attorney hours presented on the sheet. The State responded that the witness relied on the sheet to perform her job and that the document was kept in the regular course of business. The district court admitted the timesheet under Idaho Rule of Evidence 803(6) exception to hearsay, Records of a Regularly Conducted Activity. The witness explained that attorneys put their initials on the row where they worked, but that she double checked which attorney actually worked by "look[ing] at the top of the file" where the name of the attorney is written.

         The State then sought to admit a signed and notarized affidavit by the witness that stated she reviewed the timesheet and "applied the appropriate payroll rate for said attorneys and calculated the aggregate actual prosecution costs to be a total of $906.75." The district court also admitted this affidavit under the business records exception to the hearsay rule over Cunningham's continuing objection to a lack of foundation. The witness then testified to everything found in the affidavit. Cunningham did not cross-examine the witness or present any evidence or testimony.

         At closing, Cunningham argued that the timesheet was similar to the unsworn Statement of Costs presented in the first restitution hearing, again being a boilerplate form that did not differentiate what the actual salary was for each attorney. Additionally, Cunningham argued that the State failed to present any sworn statements regarding the accuracy of the actual hours worked by each attorney. Nevertheless, the district court ruled that the State provided substantial evidence of the costs incurred, holding in part:

In this particular case, we have evidence by way of testimony, as well as by the written certificate of record, that the calculation is true and correct to the best of the information and belief. It is sworn. I do not find that the Supreme Court's decision requires that it actually be sworn by an attorney. Clearly, any custodian of records or competent witness can testify. I do find that the person who reviews the records that were kept in the regular course of business, and these records indicate the amount of time and the type of effort that was expended by each attorney. The testimony was that each one was an attorney. That they were then billed on the actual payroll records of Ada County at the time that the expenses were actually incurred, so I do find that the evidence and testimony is sufficient to show that $906.75 of prosecution costs were actually incurred in this case.

         The district court thereafter ordered restitution for $906.75 in prosecution costs under Idaho Code section 37-2732(k), and $100 for ...

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