State v. Smith ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49311
STATE OF IDAHO, )
) Filed: December 19, 2022
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
BART JAMES SMITH, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Derrick J. O’Neill, District Judge.
Order for restitution, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
LORELLO, Chief Judge
Bart James Smith appeals from an order requiring him to pay restitution. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2018, Smith struck an officer after the officer asked Smith to leave the premises
of a university building. During the altercation, Smith grabbed the officer’s shirt and fell
backwards over a two-foot-tall cement structure. The officer attempted to stop Smith’s fall, did
not succeed, and fell down with Smith. Ultimately, Smith was arrested and pled guilty to battery
on a police officer.
Starting in late 2018, the officer received treatment for headaches and pain in her neck and
left shoulder, including massages, chiropractic care, medical treatment, and physical therapy.
1
Following Smith’s sentencing, the State filed a motion for restitution, which was twice amended.
The final version requested restitution for costs incurred by the officer and by Intermountain
Claims (a worker’s compensation insurance carrier for the officer’s employer) for services
provided to the officer from November 4, 2018, to January 31, 2020.1 The district court granted
the motion. Smith objected and moved for reconsideration on the basis that the district court did
not hold a hearing prior to deciding the State’s motion. The district court granted the motion to
reconsider and held a hearing. At the hearing, the State submitted documents regarding the various
services obtained by the officer. Among these documents was a report by an independent medical
examiner concluding that the officer’s “current complaints [were] not related to” the altercation
with Smith. This independent examination occurred on January 15, 2020.
Following the hearing, the district court held that the requested restitution was “causally
related to [Smith’s] actions.” When considering Smith’s foreseeable ability to pay restitution, the
district court found that he “appear[ed] to be employable in some capacity.” The district court
ordered Smith to pay $2,740.00 to the officer and $12,185.49 to Intermountain Claims in
restitution. Smith appeals.
II.
STANDARD OF REVIEW
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. The decision whether to order restitution,
and in what amount, is within the discretion of a trial court. 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 whether the trial court:
(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such
discretion; (3) acted consistently with any legal standards applicable to the specific choices before
1
The restitution coordinator later testified that she was asked to not include costs incurred
after January 9, 2020. The record provides no explanation for why the amount of restitution
requested included costs incurred by the officer after that date.
2
it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429
P.3d 149, 158 (2018).
III.
ANALYSIS
Smith asserts the district court erred in ordering restitution because the “evidence clearly
indicates that [the officer’s] medical issues were not attributable to” the altercation that was the
basis of Smith’s criminal conduct. Smith also asserts “there was not substantial evidence in the
record to support the [district court’s] conclusion that [Smith] was employable.” The State
responds that substantial evidence supports the district court’s finding that Smith’s criminal
conduct caused the expenses associated with the various treatment services the officer received.
The State also responds that the record supports the district court’s finding regarding Smith’s
ability to pay restitution. We hold that Smith has failed to show error in the district court’s
restitution order.
A. Causation
Smith asserts the district court failed “to act consistently with the applicable legal
standards” and did not “reach its decision by an exercise of reason” because, according to him, the
district court “failed to consider or overlooked the evidence that [the officer’s] complaints were
not caused by” the altercation--specifically, the report from the independent medical examiner. 2
The State responds that other evidence supports the district court’s finding of causation and that
Smith’s argument on appeal is “based entirely upon pointing out there is conflicting evidence in
the record.”
A 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 the evidence, a causal relationship between the defendant’s criminal
2
Smith’s causation argument centers on whether the altercation caused the officer’s
symptoms requiring treatment. Smith has not asserted that the various services obtained--such as
the massages--were not medically reasonable to treat those symptoms. Cf. State v. Card, 146 Idaho
111, 116, 190 P.3d 930, 935 (Ct. App. 2008) (holding that the State failed to show that herbal
colon cleansings or footbaths were reasonable and necessary for victim’s symptoms).
3
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). On appeal,
Smith does not appear to challenge proximate cause and, thus, we will not address that aspect of
causation. 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. The determination of causation is a question of fact
for the trial court. Corbus, 150 Idaho at 602, 249 P.3d at 401. A trial court’s factual findings with
regard to restitution will not be disturbed on appeal if supported by substantial evidence. Id. 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).
The district court found that the requested restitution was “causally related to [Smith’s]
actions” but did not address the independent medical examiner’s report. Smith asserts that this
report “dispel[s] any possibility of a causal connection between [Smith’s] conduct and [the
officer’s] medical issues.” Portions of the report, based on an examination conducted on
January 15, 2020, read as follows:
[The officer] describes headaches on the left orbital and temporal areas. She also
complains of stabbing aching pain which radiates from the base of the trapezius up
towards her ear. . . .
....
On a more-probable-than-not basis, [the officer’s] current complaints are
not related to the industrial incident of October 21, 2018. [The officer] describes
that the headaches did not become significant until months after the incident in
question. In addition, “cervicogenic” headaches are most often occipital in nature
and not frontal/temporal. Frontal/temporal headaches are either of iatrogenic origin
(i.e., no known origin) or stress related. There is no evidence of any objective
condition on the imaging that would explain [the officer’s] current symptoms.
There is no evidence of any objective change or harm to the structure of the body.
Although there was an incident on the date of injury, there was no change to the
body for which an injury would be ascribed.
....
4
Regardless of etiology, no further treatment is necessary. There are no
objective or physiologic conditions being treated. [The officer] has subjective
complaints in her trapezius. They are not related to the incident in question. There
is no indication that they would be structurally improved with massage and/or
ongoing medications.
As the State notes, the record also contains assessments by a treating physician indicating
that the altercation with Smith caused the officer to experience several symptoms. One medical
record from the officer’s visit to this physician on September 4, 2019, contains two assessments:
(1) “Occipital neuralgia of left side-M54.81 (Primary), Occipital neuralgia secondary to cervical
strain secondary to confrontation October 2018 is [sic] an active duty police officer” and (2) “strain
of neck muscle, sequela-S16.1XXS, October 2018 cervical neck strain secondary to confrontation
as a police officer causing occipital nerve headaches.” A medical record from a visit on
October 16, 2019, contains identical assessments. These assessments provide substantial evidence
that the altercation caused the officer’s neck strain and occipital neuralgia. To the extent the
independent medical examiner provided a conflicting opinion, it is the province of the district court
to resolve such conflicts. We will not disturb such a determination on appeal when the district
court’s finding is supported by substantial evidence. See State v. Garcia, 170 Idaho 708, 712, 516
P.3d 578, 582 (2022). Consequently, Smith has failed to show the district court erred in finding
that the altercation caused the officer’s neck strain and occipital neuralgia.
This leaves the officer’s orbital and temporal headaches, which the independent medical
examiner concluded were not caused by the altercation. The record does not appear to contain a
conflicting opinion from a medical professional regarding these types of headaches.3 We
recognize that the record indicates that the officer believed that pain in her “temporal lobes” and
left orbit was caused by the altercation and that, at times, a layperson may opine on medical
causation. See State v. Card, 146 Idaho 111, 115-16, 190 P.3d 930, 934-35 (Ct. App. 2008). It is
generally for the district court to determine whether a lay opinion is competent to show causation,
3
On July 11, 2019, one treating physician noted that the officer’s “left-sided neck pain”
developed into “a couple of severe migraine headaches.” The record does not appear to indicate
that these migraine headaches continued past July 2019. Consequently, even if this treating
physician’s note constitutes a diagnosis regarding these past migraine headaches, it does not
provide a medical opinion that the altercation caused the orbital and temporal headaches reported
by the officer to the independent medical examiner in January 2020.
5
see id., but, in this case, the district court did not determine whether the officer was competent to
offer an opinion on medical causation. We need not address the officer’s competency to opine on
causation further, however, because Smith fails to argue on appeal that some of the treatment
received by the officer was for orbital and temporal headaches. A party forfeits an issue on appeal
if either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970
(1996). In addition, Smith fails to identify (via a citation to the record) any amount of restitution
awarded by the district court that was for treatment of the officer’s orbital and temporal headaches.
This Court will not search the record for error when an appellant fails to provide citations to the
record. State v. McDay, 164 Idaho 526, 528, 432 P.3d 643, 645 (2018). By failing to provide
argument and citations to the record, Smith has forfeited consideration of whether any of the
restitution awarded by the district court was attributable to the officer’s orbital and temporal
headaches. Consequently, Smith has failed to show that the district court erred in finding that the
altercation caused the symptoms for which the officer received treatment.
B. Foreseeable Ability to Pay
Smith asserts that “substantial evidence in the record demonstrated that [he] was not
employable” and that “the district court clearly erred in finding otherwise.”4 The State responds
that the district court did not err in its finding.
Idaho Code Section 19-5304(2) provides that the trial court “shall order a defendant found
guilty of any crime which results in economic loss to the victim to make restitution to the victim”
unless the trial court determines a restitution order would be “inappropriate or undesirable.” Id.The policy favoring full compensation to crime victims who suffer economic loss and the factors
in I.C. § 19-5304(7) guide a trial court’s decision to order restitution. Richmond, 137 Idaho at 37,
43 P.3d at 796; Bybee, 115 Idaho at 543, 768 P.2d at 806. These factors include the amount of the
victim’s economic loss; the defendant’s financial resources, needs, and earning ability; and such
other factors as the trial court deems appropriate. I.C. § 19-5304(7).
4
Smith also asserts the district court found that he “could pay $14,925.49 in restitution” and
that this finding was erroneous. The district court, however, did not find that he could pay the full
amount--instead, the district court found that he “should be able to make small monthly restitution
payments.” As discussed below, Smith has failed to show error in this finding.
6
A defendant’s “immediate inability” to pay restitution shall not be, in and of itself, a reason
not to order restitution. Bybee, 115 Idaho at 543, 768 P.2d at 806. The Idaho Supreme Court has
stated that “the ‘immediate inability’ of a defendant to pay is a separate concept from the
‘foreseeable ability’ of the defendant to repay the award.” State v. Garcia, 166 Idaho 661, 682,
462 P.3d 1125, 1146 (2020). A trial court may order restitution based on a foreseeable ability to
repay the award. State v. Wisdom, 161 Idaho 916, 924, 393 P.3d 576, 584 (2017). A trial court,
however, is not required to divine a defendant’s future financial capabilities. Garcia, 166 Idaho
at 682-83, 462 P.3d at 1146-47. A trial 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.
The district court expressly stated that it “considered [Smith’s] economic circumstances,
including his foreseeable ability to repay restitution.” As part of its determination that restitution
was proper, the district court found that Smith “appear[ed] employable in some capacity.” Smith
asserts this finding lacks substantial evidence because other evidence in the record indicates that
he is not employable. For instance, Smith had been homeless intermittently for twenty-five years,
has not been employed since at least 1996,5 has received social security disability benefits since
1996, is an alcoholic, has been diagnosed with major depressive disorder and schizoaffective
disorder, and has been hospitalized three times for psychiatric reasons. The district court, however,
found that Smith completed high school, “successfully completed [veteran’s court] and learned
many skills to help him going forward,” and had stable housing. In the process of completing
veteran’s court, Smith signed three contracts that he would maintain full-time employment or
schooling, implicitly representing that he was capable of obtaining employment or the schooling
necessary for employment. The district court also had the benefit of observing Smith in person at
the restitution hearing. Although there is conflicting evidence, substantial evidence supports the
finding that Smith “appear[ed] employable in some capacity” and, consequently, Smith has failed
to show the district court erred in this regard.
5
Smith’s presentence investigation materials list 1986, 1987, and 1996 as the latest years he
was employed.
7
We also reject Smith’s assertion that the “record is devoid of information” that he “would
be able to pay restitution to the [worker’s compensation] insurance carrier.” In addition to noting
that Smith completed high school and gained skills from completing veteran’s court, the district
court found that he receives “financial assistance through governmental programs” constituting “a
small amount each month.” These findings, along with the finding that Smith appeared
employable, provide substantial evidence for the district court’s finding that he “should be able to
make small monthly restitution payments.” Smith has failed to show error in this finding.
IV.
CONCLUSION
Substantial evidence supports the district court’s finding that Smith’s criminal conduct
caused the officer’s occipital neuralgia and neck strain. Regardless of whether the record contains
competent evidence that the officer’s orbital and temporal headaches were caused by Smith’s
criminal conduct, he forfeited consideration of whether any of the restitution awarded included
amounts for treatment for these types of headaches. Substantial evidence also supports the district
court’s findings regarding Smith’s foreseeable ability to pay. Accordingly, the district court’s
order for restitution is affirmed.
Judge HUSKEY and Judge BRAILSFORD, CONCUR.
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