State v. Hess ( 2020 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47437
STATE OF IDAHO )
)
Plaintiff-Respondent, Boise, January 2020 Term
)
)
v. Opinion Filed: April 30, 2020
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RICHARD LOWELL HESS, )
Karel A. Lehrman, Clerk
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Defendant-Appellant. )
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Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Deborah A. Bail, District Judge.
The decision of the district court is vacated in part and affirmed in part.
Eric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant.
Kimberly A. Coster argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Jeffery D. Nye
argued.
_____________________________
BURDICK, Chief Justice.
Richard Lowell Hess appeals from the district court’s award of restitution entered against
him under Idaho Code section 37-2732(k). Based on Hess’s plea agreement, the district court
entered an order of restitution in the sum of $8,116.35 to several law enforcement agencies
following Hess’s guilty plea to felony trafficking in heroin. On appeal, Hess relies on this Court’s
decision in State v. Nelson, 161 Idaho 692, 390 P.3d 418 (2017), to argue that there is insufficient
evidence to support all but $1,500 of the award. The Court of Appeals reversed the restitution
order, and we granted the State’s timely petition for review. For the reasons below, we vacate in
part and affirm in part.
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I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, a Boise Police Department task force, BANDIT1, arranged for a
confidential informant to purchase heroin from Hess, staging two “controlled buys.” The first took
place on February 17, 2016, during which Hess sold two grams of heroin for $600 and the other
took place a week later during which Hess sold two grams of heroin for $500. A grand jury indicted
Hess on two counts of trafficking in heroin in violation of Idaho Code section 37-2732B(a)(6)(A)
and a warrant was issued for his arrest.
Police arrested Hess in November 2016 after they observed him during a drug deal. Upon
arrest, Hess informed police that he had heroin and around $10,000 in cash in a safe at his home.
With Hess’s written consent to search his room, police found over 35 grams of heroin. The State
charged Hess in a second criminal case with felony trafficking in heroin in violation of Idaho Code
section 37-2732B(a)(6)(C).
Hess entered into a plea agreement with the State in which he pleaded guilty to an amended
charge of felony trafficking in heroin in violation of Idaho Code section 37-2732B(a)(6)(B) and
the State agreed to move to dismiss the controlled-buy charges. As part of that plea agreement,
Hess agreed to pay restitution in an amount to be determined at sentencing.
Prior to sentencing, the State filed restitution documents, including:
 An Idaho State Police request for $200.00 for lab tests from the first controlled buy;
 A second Idaho State Police request for an additional $200.00 for lab tests from the
consent-search;
 An Ada County Prosecutor’s Office request for $391.95 for the costs of prosecution in
the form of a “Certificate of Records”;
 A BANDIT request form for $7,324.40 for the costs of investigation comprised of:
o $5,603.20 for “investigative hours”;
o $121.20 for “overtime hours”; and
o $1,600 for “evidence purchases.”
A few weeks later, the State filed the presentence report and accompanying documents. Within
that filing were the police reports (including evidentiary forms and photo logs) and Idaho State
Police substance analyses stemming from the first-controlled buy, the second-controlled buy, and
Hess’s subsequent arrest and search.
1
Although not defined anywhere in the record, BANDIT appears to be an acronym standing for “Boise Area
Narcotics and Drug Interdiction Task Force.”
2
The parties did not address restitution until the sentencing hearing. There, Hess did not
object to the $400 in “lab fees” and conceded that $1,100 of the “evidence purchases” were
properly awardable. However, Hess objected in general terms to the remaining portions of the
State’s request. He voiced not only a general objection to the request for prosecution costs, but he
also specifically argued that BANDIT’s request for investigative costs was not supported by
sufficient detail based on the nature of the investigation.
The district court overruled Hess’s objection. It determined that there was “sufficient
documentation to warrant the State’s restitution order” based on “the police reports and other
materials submitted in connection with the presentence report[.]” The district court sentenced Hess
and entered an order for restitution granting the State’s request in its entirety.
Hess’s appeal was assigned to the Court of Appeals, which reversed and remanded the
district court’s order awarding restitution. We granted the State’s timely petition for review.
II. ISSUE ON APPEAL
Is the district court’s award of restitution under Idaho Code section 37-2732(k) supported
by substantial evidence?
III. STANDARD OF REVIEW
We review a district court’s decision to award restitution under Idaho Code section
37-2732(k) for an abuse of discretion. State v. Cunningham, 161 Idaho 698, 700, 390 P.3d 424,
426 (2017) (Cunningham I). Accordingly, this Court uses the four-part Lunneborg standard to
determine whether the district court “(1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 873, 421 P.3d 187, 204 (2018). To comply
with sub-parts 2–4 of the Lunneborg standard, the district court must “base the amount of
restitution upon the preponderance of evidence submitted by the prosecutor, defendant, victim, or
presentence investigator.” Cunningham I, 161 Idaho at 700, 390 P.3d at 426 (quoting State v.
Weaver, 158 Idaho 167, 170, 345 P.3d 226, 229 (Ct. App. 2014)).
IV. ANALYSIS
Hess argues that certain amounts of the restitution award are not supported by substantial
evidence. He contends that the State failed to produce evidence showing that the expenses were
“actually incurred” as required under this Court’s decisions in State v. Cunningham, 161 Idaho
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698, 390 P.3d 424 (2017) (Cunningham I) and State v. Nelson, 161 Idaho 692, 390 P.3d 418 (2017).
Under this theory, Hess disputes both the award of prosecution costs and portions of the award of
investigative costs. For the reasons below, we determine that $500 of the district court’s award of
investigation costs is unsupported by the evidence. However, the district court correctly awarded
the remaining amounts of restitution because (A) Hess failed to preserve his foundational
objections and (B) substantial evidence supports the award.
A. Hess failed to preserve his arguments regarding the admissibility of the “Certificate of
Records” and the BANDIT request form.
Hess’s appellate arguments concern both the “Certificate of Records” and the BANDIT
request form. Generally, he claims both documents are deficient because they fail to measure up
to what this Court has required to support prosecution costs in Cunningham I, 161 Idaho 698, 390
P.3d 424 and Nelson, 161 Idaho 692, 390 P.3d 418. Based on the nature of his arguments below,
we determine Hess has failed to preserve his foundational objections for either document.
Under Idaho’s Uniform Controlled Substances Act, a court may award restitution to
law-enforcement agencies for costs “actually incurred” in investigating and prosecuting a
drug-related offense. I.C. § 37-2732(k). Measuring up to section 37-2732(k)’s standard of
“actually incurred” requires a district court’s grant of restitution to be supported by substantial
evidence. Cunningham I, 161 Idaho at 702, 390 P.3d at 428. “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) (citation omitted). Generally, a party may challenge the
sufficiency of the evidence for the first time on appeal. State v. Villa-Guzman, 166 Idaho 382, 384,
458 P.3d 960, 962 (2020) (citing State v. Yeoumans, 144 Idaho 871, 873, 172 P.3d 1146, 1148 (Ct.
App. 2007)).
But while a party may challenge the sufficiency of the evidence (i.e. the quantum of
evidence) for the first time on appeal, this Court has long required objections to the admissibility
of evidence to be raised below. Id. To preserve an evidentiary objection for appellate review,
“either the specific ground for the objection must be clearly stated, or the basis of the objection
must be apparent from the context.” State v. Almaraz, 154 Idaho 584, 602, 301 P.3d 242, 260
(2013) (quoting State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 (2003)); I.R.E.
103(a)(1)(B). The rules of evidence generally apply to restitution hearings under section
37-2732(k), see I.R.E. 101(d)(7), including the admission of hearsay in some cases. See State v.
Cunningham, 164 Idaho 759, 763, 435 P.3d 539, 543 (2019) (Cunningham II). We have recently
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held that any alleged error based on a defect in the documentary evidence supporting a restitution
request is a foundational objection, and thus, must be first made below to be preserved for appellate
review. Villa-Guzman, 166 Idaho 382, 384, 458 P.3d 960, 962 (2020).
Here, no written objection to the State’s restitution request appears in the record. Rather,
Hess’s objection is limited to the following statements made at the sentencing hearing:
Your Honor, with regards to the restitution, we do object to the costs of prosecution
as well as the BANDIT. The information I was provided with regards to the
BANDIT reimbursement, simply just lists the number of hours of investigation. I
don’t think we would object to the monies, the $1,100, that were used as the buy
money, but I don’t have any detailed information as to the level of their
investigation to get that amount. I think it’s $5,900 was the amount that they’re
asking reimbursement for their BANDIT investigation, and to know that the
majority of the substance that was obtained was hand-delivered by [Hess], and so
we would object to the cost of prosecution and the BANDIT amount.
The district court overruled the objection by noting that “there is sufficient documentation to
warrant the State’s restitution order” based on “the police reports and other materials submitted in
connection with the presentence report[.]”
Hess’s objection to the prosecution and investigative costs is deficient under Idaho Rule of
Evidence 103 because it lacks the specificity required of evidentiary objections. See I.R.E.
103(a)(1)(B). And while his objection regarding the investigative costs provides some level of
elaboration, that objection is better characterized as an argument asserting that the sum requested
by BANDIT is unsupported by the evidence. In short, Hess’s argument is geared toward the
quantum of evidence supporting the request rather than the admissibility of the BANDIT request
form itself.
To explain, it’s useful to understand the document Hess attacks on appeal. The BANDIT
request form is a one-page summary of the costs claimed by the Boise Police Department as a
result of Hess’s investigation. The Boise Police Department submitted the form to the prosecutor’s
office which then submitted it to the district court. The document provides a case number as well
as four “DR numbers” which reference the police reports supplied by the State as part of the PSI
documents. It further lists the date of incident as “11/4/15 - 11/30/16” which corresponds with the
dates of the police reports. Through the request, BANDIT sought restitution for “investigative
hours” ($5,603.20); “overtime hours” ($121.20); and “evidence purchases” ($1,600.00). It
contains the electronic signature of a Narcotics Lieutenant and indicates that “supporting
documents are available if necessary.”
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With this understanding, Hess’s arguments below did not ask the district court to exclude
the BANDIT request form on an evidentiary basis. Rather, Hess referenced the “lack of detail” in
the “information” he was provided to argue that the sums requested in the BANDIT request form
were not supported by substantial evidence. This argument relied on comparison between the
requested sums and the fact that Hess “hand-delivered” the drugs—the inference being that the
requested sums were not proportional to the investigation. Thus, this argument does not rely on an
evidentiary defect in the document itself.
An evidentiary objection to the admissibility of evidence requires a specific objection—an
argument based on the lack of evidence supporting a restitution request does not. Here, Hess’s
argument falls into the latter category. And even though the “basis of the objection [can] be
apparent from the context,” there is nothing in the record to suggest that the basis of Hess’s
objection advanced any of the admissibility argument he now asserts on appeal. In fact, the district
court’s ruling addressed only whether the evidence provided supported the sum requested by the
State. In direct response to Hess’s argument, the court referenced the police reports. Viewing these
reports along with other documents in the record, the district court ruled that the State’s request
was supported by the evidence: “[I]t seems to me in looking at the police reports and the other
materials submitted in connection with the presentence report, that there is sufficient
documentation to warrant the state’s restitution order . . . .” As such, the district court never
addressed the admissibility of the BANDIT request form. So, if Hess’s counsel intended to object
to the admissibility of the BANDIT request form rather than the quantum of evidence supporting
the sums requested, he was obligated to follow up and seek an adverse ruling on that objection.
As a result, Hess has failed to preserve his arguments regarding the admissibility of the
evidence supporting the prosecution and investigative costs. See State v. Gonzalez, 165 Idaho 95,
99, 439 P.3d 1267, 1271 (2019) (“We will not hold that a trial court erred in making a decision on
an issue or a party’s position on an issue that it did not have the opportunity to address.”). Had
Hess appropriately articulated his foundational arguments below, the district court could have
addressed them, the State could have cured the defects, or either party could have requested an
evidentiary hearing. See Villa-Guzman, 166 Idaho at 384, 458 P.3d at 962 (commenting that
foundational error in documents supporting restitution awards “can easily be remedied in the trial
court by counsel making a contemporaneous objection.”). Since Hess has failed to preserve those
objections, we do not address them on appeal. This includes all of Hess’s arguments relating to the
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prosecution costs because his foundational claims were his sole basis to argue that the district
court’s award was not supported by substantial evidence. However, we must still address Hess’s
contention that the investigative costs are not supported by substantial evidence because those
objections were not solely based on admissibility concerns.
B. Except for $500 awarded for evidence purchases, the district court’s award of
investigation costs is supported by substantial evidence.
Hess urges this Court to determine that the BANDIT request form lacked sufficient detail
to constitute substantial evidence to support the award of costs. He argues that the BANDIT request
form is the sole evidence supporting the district court’s decision to award restitution for
“investigation hours” or “overtime hours.” He emphasizes that the document is unsworn and fails
to delineate the time spent performing specific tasks by any particular employee. We conclude that
the district court’s award of restitution—with the exception of the disputed $500 in “evidence
purchases”—is supported by substantial evidence.
As explained in the previous section, Hess’s counsel’s argument went to the quantum of
evidence supporting the award rather than the admissibility of the BANDIT request form.
Accordingly, we address only Hess’s argument that go toward the quantum of evidence, rather the
admissibility of the documentary evidence.
To start, the State concedes that $500 of the $1,600 requested for “evidence purchases” is
not supported by substantial evidence in the record. We accept that concession. However, outside
of this concession, the district court’s award of the investigative costs is supported by substantial
evidence. The BANDIT request form was not the sole evidence supporting the State’s request nor
the district court’s award. Rather, the district court correctly noted that documents in the record
contradicted Hess’s argument that BANDIT’s investigation was not proportional to the sum it
requested. Specifically, the police reports provided in support of the State’s request supplied
additional evidence to support the award of restitution. Hess did not object to these documents and
the reports reveal that the investigation into Hess’s drug-dealing operation involved much more
than a simple hand-to-hand drug deal.
For the first charges, BANDIT detectives monitored Hess before, during, and after the
controlled buys. For each controlled buy, BANDIT held a “preoperational briefing” to educate
detectives and officers about Hess, his suspected operation, and the planned controlled buy.
Immediately preceding the controlled buys, two detectives met with the confidential informant,
thoroughly searched him and his vehicles for contraband, fitted him with an audio transmitting
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device, and provided him with pre-recorded buy money. Surveillance units observed Hess leave
his house and two detectives tailed the controlled informant to the purchase point. After the
transaction, the two detectives followed the confidential informant to a prearranged location where
the informant turned over the heroin and identified Hess in a mugshot. A detective transported the
heroin to the BANDIT office where it was weighed, photographed, and tested. The detective then
submitted the heroin to the Property and Evidence Unit for further testing.
The police reports on Hess’s second set of charges reveal that Hess’s arrest was no less
complex. The arrest involved two police officers, multiple BANDIT detectives, and a K-9 unit.
Once officers obtained permission to search Hess’s room at his mother’s house, two detectives
conducted the search and documented the evidence found. These reports, along with photographic
and documentary evidence in the pre-sentence report, provide sufficient narrative detail to support
the district court’s award of restitution.
In sum, taking into consideration the BANDIT request form alongside the police reports
and supporting documents, the district court’s award of restitution for investigative costs is
supported by substantial evidence.
V. CONCLUSION
For the above reasons, we determine that the district court abused its discretion by awarding
the disputed $500 in “evidence purchases” because that amount is not supported by substantial
evidence. Accordingly, we vacate the restitution order with instructions to reenter the order without
the disputed $500 of “evidence purchases” awarded to the Boise Police Department. The
remainder of the district court’s restitution order is affirmed.
Justices BRODY, BEVAN, STEGNER and MOELLER CONCUR.
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