State v. Curtiss

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48616
STATE OF IDAHO, )
) Filed: May 26, 2022
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
BRANDON RICHARD CURTISS, ) 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. Peter G. Barton, District Judge.
Second order of restitution, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Jacob L. Westerfield,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
__________________________________________________________
HUSKEY, Judge
Brandon Richard Curtiss appeals from the district court’s second order of restitution.
Curtiss alleges the district court’s second order of restitution is not supported by substantial
evidence. Foundational challenges to evidence supporting the restitution amount must be raised
in the trial court to be preserved for consideration on appeal. Curtiss did not raise his evidentiary
foundational challenge claims in the district court and, consequently, they are not preserved for
appeal. Because the district court’s second order of restitution is supported by substantial
evidence, the district court did not err and the second order of restitution is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Curtiss with eighteen counts of grand theft alleging that Curtiss, through
his position as a property manager, withheld rental income from eighteen homeowners. Pursuant
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to a plea agreement, Curtiss pled guilty to one count of grand theft and agreed to pay restitution
“for all the victims of all charged and/or dismissed conduct,” in an amount to be determined at a
later date. The district court sentenced Curtiss to a unified sentence of fourteen years, with three
years determinate, suspended the sentence, and placed him on probation with 365 days to be served
in county jail.
The parties each retained a forensic accounting expert, who compiled separate restitution
reports. Thousands of pages of documents were submitted to the district court, including a report
from each forensic examiner. The district court held a two-day restitution hearing at which both
experts testified regarding their calculations for the appropriate amount of restitution. Following
the hearing, the parties stipulated to restitution amounts for five of the eighteen homeowners, and
the district court entered a restitution order as to those homeowners. However, the parties disputed
the amount of restitution for the remaining thirteen homeowners; the State’s expert determined
that Curtiss owed the remaining homeowners $94,846.53 while Curtiss’s expert determined
Curtiss owed $35,895.59, including no restitution amount for several of the homeowners.
The parties submitted written closing arguments. The State argued the district court should
adopt the conclusions of its expert and award $94,846.53 of restitution to the thirteen remaining
homeowners. In contrast, Curtiss argued the district court should adopt his expert report and award
$35,895.59 for the thirteen remaining homeowners. Curtiss argued that his expert report was the
most fair to all parties, contending the State’s expert was not objective for various reasons,
including her background working for prosecutors and her methodology in which she required
verification for Curtiss’s documents that she did not require for documents from other individuals
or institutions.
The district court weighed the evidence presented and determined that although both
experts testified credibly, in light of the State’s expert’s background, reasonable investigation
process, sound methodology, and reliance on a vast array of documents (not just those Curtiss
provided), the State’s expert report was more reliable than Curtiss’s. Accordingly, the district
court found the State established by a preponderance of the evidence that Curtiss owed the thirteen
remaining homeowners the amounts established by the State’s expert report and the court entered
a second order of restitution for $94,846.53.1 Curtiss timely appeals.
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The district court subsequently entered a corrected second restitution order. This corrected
restitution order did not change the restitution amounts ordered in the second restitution order.
2
II.
STANDARD OF REVIEW
A trial court’s order of restitution is reviewed for an abuse of discretion. State v. Foeller,
168 Idaho 884, 887, 489 P.3d 795, 798 (2021). When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the
lower 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 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
Curtiss alleges the district court erred in its second order of restitution by ordering the
restitution amounts listed in the State’s expert report. Specifically, Curtiss argues the district
court’s second order of restitution is not supported by substantial evidence because the calculations
in the State’s expert report: (1) improperly required Curtiss to pay restitution to the homeowners
for the non-rental payments made by the tenants to Curtiss, in violation of Idaho Code § 6-321;
(2) assessed the non-payment of non-rental income against Curtiss even though he only pled guilty
to “collecting rent checks from tenants renting property owned by” the homeowners and “refusing
to disburse the rents he agreed to collect on his behalf” back to those homeowners; and
(3) contained computational errors, including listing payments twice that were made by tenants to
Curtiss and using the wrong check numbers for payments made by Curtiss to some of the
homeowners. Curtiss asks this Court to reverse the district court’s second order of restitution and
remand the case for further proceedings. In response, the State contends the district court did not
err because substantial evidence supports the second order of restitution and Curtiss’s arguments
are unpreserved.
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 of whether to order restitution,
and in what amount, is within the discretion of a trial court, guided by consideration of the factors
set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime victims who
suffer economic loss. 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). While the appropriate
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amount of restitution is a question of fact for the trial court, State v. Lombard, 149 Idaho 819, 822,
242 P.3d 189, 192 (Ct. App. 2010), the restitution order must be based upon the preponderance of
evidence submitted. State v. Smith, 144 Idaho 687, 695, 169 P.3d 275, 283 (Ct. App. 2007); see
also I.C. § 19-5304(6).
A trial court’s findings with regard to restitution will not be disturbed on appeal if the
findings are supported by substantial evidence. State v. Corbus, 150 Idaho 599, 602, 249 P.3d
398, 401 (2011). 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). Substantial
evidence may support a restitution order even if the evidence presented to the trial court was
conflicting, Bettwieser v. New York Irrigation Dist., 154 Idaho 317, 322, 297 P.3d 1134, 1139
(2013), or included inherent challenges to estimating the actual economic loss suffered by a crime
victim, like in embezzlement cases where employee theft has spanned a long period of time.
Lombard, 149 Idaho at 823, 242 P.3d at 193. Ultimately, we will not substitute our view for that
of the trier of fact as to the credibility of the witnesses, the weight to be given to the testimony,
and the reasonable inferences to be drawn from the evidence. State v. Knutson, 121 Idaho 101,
104, 822 P.2d 998, 1001 (Ct. App. 1991); State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304
(Ct. App. 1985).
A. Curtiss’s Claims Are Foundation Objections to the State’s Expert Report and Are
Unpreserved for Appeal
The district court made detailed factual findings, ultimately concluding the State’s expert
report was more credible and reliable than Curtiss’s expert report. For the first time on appeal,
Curtiss makes several specific allegations of error in the State’s expert report. While it is
undisputed that Curtiss did not raise his challenges to the State’s expert report during the
proceedings below, Curtiss contends that his claims on appeal are challenges to the sufficiency of
the evidence on which the restitution award was based and, thus, can be raised for the first time on
appeal. We disagree.
Generally, issues not raised below may not be considered for the first time on appeal, State
v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992), and parties will be held to the theory
upon which the case was presented to the lower court. State v. Oxford, 167 Idaho 515, 521, 473
P.3d 784, 790 (2020). 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. State v. Gonzalez,
165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019). While in some circumstances challenges to the
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sufficiency of the evidence may be raised for the first time on appeal, State v. Yeoumans, 144 Idaho
871, 873, 172 P.3d 1146, 1148 (Ct. App. 2007), the Idaho Supreme Court has clarified that same
broad challenge does not apply to restitution evidence. State v. Villa-Guzman, 166 Idaho 382, 384,
458 P.3d 960, 962 (2020) (“While we support this legal principle as it pertains to the evidence
necessary to sustain a burden of proof at trial, we disagree that such a standard pertains to matters
affecting restitution evidence.”). Instead, arguments that address the nature, rather than amount,
of evidence supporting a restitution award will not be considered when raised for the first time on
appeal. See State v. Hess, 166 Idaho 707, 711-12, 462 P.3d 1171, 1175-76 (2020).
In Hess, Hess pled guilty to felony trafficking in heroin and agreed to pay restitution in an
amount to be determined at sentencing. Id. at 708, 462 P.3d at 1172. The State requested
$8,116.35 in restitution, comprised of $400 for lab tests, $391.95 for prosecution costs, and
$7,324.40 for investigation costs. Id. at 708-09, 462 P.3d at 1172-73. At the restitution hearing,
Hess did not object to the lab test fees or $1,100 of the investigation costs, but objected in general
terms to the remaining portions of the State’s request, arguing that the State did not provide enough
detail to support the remaining amounts. Id. at 709-10, 462 P.3d at 1173-74. The district court
determined the materials submitted by the State provided sufficient documentation to support the
restitution request and entered an order of restitution granting the State’s request in its entirety. Id.
at 709, 462 P.3d at 1173.
On appeal, Hess alleged, in part, that the district court’s order of restitution pertaining to
prosecution and investigative costs was not supported by substantial evidence because two of the
documents the State admitted to support these portions of its restitution request were legally
deficient pursuant the Idaho Supreme Court’s previous decisions in State v. Cunningham, 161
Idaho 698, 390 P.3d 424 (2017) and State v. Nelson, 161 Idaho 692, 390 P.3d 418 (2017). Hess,
166 Idaho at 710, 462 P.3d at 1174. The Court held that although Hess objected to the prosecution
and investigative costs below, his objection was that the State did not provide enough detail to
support these costs, not that the documents supporting these costs were legally inadmissible. Id.
at 711, 462 P.3d at 1175. The Court held while a party may challenge the sufficiency of the
evidence (i.e. the quantum of evidence) for the first time on appeal, objections to the admissibility
of evidence must be raised below to be preserved for appeal. Id. at 710, 462 P.3d at 1174. Because
“any alleged error based on a defect in the documentary evidence supporting a restitution request
is a foundational objection . . . [it] must be first made below to be preserved for appellate review.”
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Id. Because Hess never raised allegations of the evidentiary defects in the State’s documents to
the district court, the Court held he failed to preserve these claims on appeal.2 Id. at 711, 462 P.3d
at 1175.
Here, Curtiss claims that calculations in the State’s expert report (1) improperly required
Curtiss to pay restitution to the homeowners for the non-rental payments made by the tenants to
Curtiss, in violation of I.C. § 6-321; (2) assessed the non-payment of non-rental income against
Curtiss even though he only pled guilty to “collecting rent checks from tenants renting property
owned by” the homeowners and “refusing to disburse the rents he agreed to collect on his behalf”
back to those homeowners; and (3) contained various computational errors. None of these
arguments were raised in the district court. In the district court, Curtiss only argued his expert’s
report was more fair. Like Hess, these are foundational objections that had to be raised to the trial
court to be preserved for appeal. Had Curtiss raised these allegations of error below, the district
court could have addressed each claim of error and made the appropriate factual findings, thereby
creating a record for review. See Hess, 166 Idaho at 711, 462 P.3d at 1175 (“Had Hess
appropriately articulated his foundational arguments below, the district court could have addressed
them.”).3
Curtiss contends “the admission of conflicting expert witness reports should be sufficient
to preserve challenges to the contested portions of those reports” because otherwise it would place
an “onerous,” “hypertechnical” burden on the parties to identify specific calculation errors in
complex restitution proceedings. We are not persuaded. First, identifying relevant legal
2
The holding in Hess is consistent with previous decisions holding that a defendant cannot
challenge a restitution order on appeal on legal arguments which have not first been raised in the
trial court. See State v. Wisdom, 161 Idaho 916, 919-20, 393 P.3d 576, 579-80 (2017) (holding
because defendant did not raise claim whether Idaho Medicaid State Operations was eligible for
restitution, he could not raise this argument on appeal); see also State v. Dorsey, 126 Idaho 659,
661-62, 889 P.2d 93, 95-96 (Ct. App. 1995) (holding because defendant only disputed the
timeliness of restitution claim below, he could not raise challenge to restitution order on different
legal ground on appeal).
3
The record in this case illustrates why an appellate court reviews only challenges to the
quantum of evidence, not the nature of evidence, supporting a restitution award. The record
encompasses dozens of electronic file folders containing thousands of pages of financial
documents and data entries. The district court found portions of these financial records,
specifically those provided by Curtiss, contained inaccurate and erroneous information. On
appeal, this Court has no way to assess whether the alleged errors identified by appellate counsel
are an error by the State’s expert or the result of erroneous data in documents provided by Curtiss.
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arguments (e.g., whether some of the income qualified as rent) does not depend on the volume of
documents. Second, although Curtiss contends that identifying specific computational errors is
too onerous for trial counsel, appellate counsel prepared and attached a twenty-eight page appendix
to his appellant’s brief consisting of line-by-line allegations of error in the State’s expert’s
restitution calculations, including references to individual checks, bank accounts, and tenant fees.4
Nothing in the record indicates trial counsel was unable to identify these same alleged foundational
errors. Thus, the appropriate time to allege such defects--including whether the underlying
documents were fraudulent or whether the computations were correct--is in the trial court, where
the court can make factual findings including, as previously referenced, the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from
the evidence. See Knutson, 121 Idaho at 104, 822 P.2d at 1001. Because Curtiss did not raise his
challenges to the foundational defects in the State’s expert report in the district court, he waived
consideration of these claims on appeal.
B. Substantial Evidence Supports the Second Order of Restitution
Moreover, substantial evidence supports the district court’s second order of restitution.
During the restitution hearing, Curtiss did not object to the admission of the State’s expert report,
which included appendices of individual spreadsheets showing the payouts received by each
homeowner from Curtiss, documented expenses Curtiss incurred from managing each property,
and a summary document identifying and addressing the discrepancies between her calculations
and Curtiss’s expert report. After hearing testimony from both parties’ experts and reviewing the
expert reports, the district court weighed the evidence and found that Curtiss’s expert was “overly
deferential” to the records provided by Curtiss, despite the “significant and apparent risk” that
Curtiss had falsified his records in an attempt to cover up the missing money owed to the
homeowners. As such, the district court found that Curtiss’s expert’s experience and methodology
was “more appropriate for civil issues of partnership disputes and divorces, where there may not
necessarily be an intentionally deceptive party creating the records over an extended period.”
In contrast, the district court found the State’s expert was “more credentialed and
experienced in the area of investigating fraudulent accounting” and approached each document
4
This Court does not find the appendix relevant because we are not in a position to make
factual findings or assess whether the data upon which appellate counsel’s calculations is accurate
or that the computations are correct.
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with an appropriate level of skepticism. The district court found the State’s expert performed a
line-by-line analysis of a variety of documents including bank statements, cancelled checks, cash,
money orders, cashier’s checks, deposits, payment processing provider records, homeowner
records, and Curtiss’s records. The district court found the State’s expert calculated the amount
Curtiss owed to the homeowners and concluded Curtiss “altered records in order to reduce or
negate the loss to the homeowner,” including by changing the amounts of income he received and
creating fictitious expenses to reduce the amount of funds due to the homeowners. The district
court found the State’s expert’s investigation was thorough and her methodology in calculating
the losses to the homeowners was “reasonable and based on the best evidence available.”
The district court acknowledged the inherent difficulties in determining the precise amount
of the homeowners’ losses in a case of this nature; Curtiss committed the thefts over a long-term
period and could conceal the amounts taken. Finding that the State’s expert report was more
reliable, the district court adopted the State’s expert’s conclusions regarding the amount Curtiss
owed to the thirteen remaining homeowners. The district court’s credibility determination in
relation to the State’s expert will not be disturbed on appeal. As such, taken together, there is a
sufficient quantum of evidence to find by a preponderance of the evidence that Curtiss owed the
homeowners the amount of restitution ordered. Accordingly, the district court’s second order of
restitution is supported by substantial evidence.
IV.
CONCLUSION
Curtiss’s claims of error are foundation defects to the evidence presented to the district
court and, as such, he was required to raise these claims below in order to preserve them for
consideration on appeal. Because he did not, Curtiss’s claims on appeal are unpreserved. The
district court’s second order of restitution is supported by substantial evidence. Accordingly, the
district court did not err and the second order of restitution is affirmed.
Chief Judge LORELLO and Judge GRATTON CONCUR.
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