1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44672

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

ROMAN ROBERT HAMANN ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) 2018 Unpublished Opinion No. 374

Filed: February 28, 2018
Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, Shoshone County. Hon. Scott L. Wayman , District Judge.
Judgment s and orders of r estitution, vacated

. Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen , Deputy Attorney General, Boise, for respondent.

________________________________________________ LORELLO, Judge Roman Robert Hamann appeals from the district court ’ s judg ment s and orders of
restitution. For the re asons set forth below, we vacate both judgments and orders of restitution

. I.
FACTUAL AND PROCEDURAL BACKGROUND A jury found Hamann guilty of possession of stolen property for stealing a car (a Lexus)

. I.C. § 18

- 2403(4). The car was recovered and returned to its owner a few days after it was
stolen. At sentencing, t he State sought restitution for State Farm Insurance Company and
restitution for the v ictim. In support of the restitution request s , the State filed a memorandum advising the district court that the State was requesting $1
, 700.26 restitution for State Farm and $316.83 restitution for the victim. The State a ttached a letter from State Farm and an invoice2 from a car dealership to its restitution memorandum . The letter from State Farm reads : “We
understand an arrest has been made in connection with our insured’s vehicle which was stolen on February 3, 2016. Should [Hamann] be found guilty, State Farm ® is requesting restitution from [Hamann] for the damages sustained by our insured to the extent we have made claim payments.” The letter indicated that its “Losses to Date” were “$02/03/2016 [sic],” 1 that its portion of the “loss” was $1
, 700.26, and that its insured’s deductible was $100. The invoice from the car dealership is for $216.83 and indicates it was for reprogramming a key fob for a Dodge. The State did not submit any other invoices and did not present any evidence at the sentencing hearing with respect to its restitution request

. Hamann asked the district court to defer ruling on the restitution request until the St ate submitted additional information supporting the $1
, 700.26 request from State Farm and additional information explaining the basis for the request regarding the key fob. The district court denied Hamann’s request and ordered
restitution in the full am o unt sought by the State , concluding “ the out

- of

- pocket costs and the
insurance costs were reasonable. ” Hamann appeals.
II.
STANDARD OF REVIEW
The decision of whether to order restitution, and in what amount, is within the discretion of a trial court, gu ided 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 54 1, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, w e 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 appel late court conducts a multi

- tiered inquiry to determine whether the lower court correctly perceived the issue as one of discretion
, acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it
, and reached its decision by an exercise of reason. State v. Hedger , 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). To meet the second and third requirements of the multi

- tiered inquiry, the trial court must base the amount of restitution upon

1 February 3, 2016, was the date the car was stolen.3 the preponderance of evidence submitted by the prosecutor, defendant, victim, or presentence investigator. I.C. 19

- 5304(6). On appeal, the restitution award will be upheld if it is supported by substantial evidence. State v. Cheeney , 144 Idaho 294, 296, 160 P.3d 451, 453 (Ct. App. 2007). Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. State v. Straub , 153 Idaho 882, 885, 29 2 P.3d 273, 276 (2013).
III.
ANALYSIS Hamann argues that the restitution award was not supported by sufficient evidence because the State failed to prove that Hamann’s criminal conduct caused the economic losses allegedly incurred by the victim and State Farm. The State concedes the evidence is insufficient to support the $216.83 award to the victim for reprogramming the Dodge key fob since Hamann did not steal that car. The State, however, contends there was sufficient evidence to support the remaining amount of restitution awarded

-- $1
, 700.26 to State Farm and $100 for the victim’s deductible. We agree with Hamann.
Idaho Code Section 19

- 5304(2) authorizes a sentencing court to order a defendant to pay
restitution for economic loss caused by a defenda nt’s criminal conduct. Economic loss includes, but is not limited to, the value of property taken, destroyed, broken, or otherwise harmed, lost wages, and direct out

- of

- pocket or losses or expenses resulting from the defendant’s criminal conduct, but does not include less tangible damage such as pain and suffering or emotional
distress. See I.C. § 19

- 5304(1)(a). It is the State’s burden to prove, by a preponderance of the evidence, a causal rel ationship between the defendant’ s criminal conduct and the ec onomic loss 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 I daho 206, 212, 296 P.3d 412, 418 (Ct. App. 2012)

. We first note that the State did not present any evidence at the sentencing hearing in support of its restitution request. Instead, the State indicated it was requesting restitution and advised the district court of the amount requested. The request was also set forth in the
“Memorandum of Restitution” filed approximately one month pri or to sentencing, to which the4 S tate attached the State Farm letter

. 2 However, nothing in the memorandum or the State Farm
letter shows a causal connection between the amou nt State Farm paid and Hamann’s criminal
conduct. While the letter notes that State Farm’s insured’s vehicle was stolen and indicates the company was seeking payment for “damages sustained,” there wa s no evidence explaining what the damages were or how Ha mann caused them. Nor did the State offer any explanation even
after Hamann asked the district court to keep restitution “open” until more information was provided. T he district court declined to defer its decision after concluding that the amounts

reque sted were reasonable. There was insufficient evidence to make such a determination because the State did not present any evide nce of what the expense was for or how it was

connecte d to Hamann’s criminal conduct. The State argues the evidence was suffici ent because the evidence (the letter) “shows that the insurer paid the directly injured victim for losses caused by the theft because she was their
insured.” What the letter actually states is that an arrest was made “in connection with our
insured’s vehi cle which was stolen” and that State Farm was “requesting restitution from [Hamann] for the damages sustained by our insured to the extent we have made claim payments.” Even if the letter s upport s an inference that State Farm paid for damages it believed
were incurred as a result of the theft, absent evidence of what those damages were, it is impossible to make a determination that any damages were the result of the theft . The State’s argument that this case is indistinguishable from State v. Tai e , 138 Id aho 8 78, 71 P.3d 477 (Ct. App. 2003) is incorrect.
In Tai e , the defendant was driving under the influence of alcohol and methamphetami ne when he hit a motorcyclist. Tai e fled the scene, resulting in a high

- speed chase in which Tai e drove his pickup through a chain link fence owned by an equipment company. Tai e pled guilty to aggravated assault, aggravated driving while under the influence of alcohol or drugs, felony eluding a peace officer, and aggravated assault upon a police offi cer. The State requested restitution for the damage caused to the motorc ycle and the chain link fence. In support of its request, the State presented testimony from the motorcyc le owner regarding the amount his

2 As noted, the State also attached to its memorandum an invoice for reprogramming a Dodge key fob. Because the invoice relates only to the amount the State concedes was not properly awarded, the invoice is irrel evant to our analysis.5 insurance company paid him to repair the da mages, which was corroborated by a letter from the
insurer. The State also presented a letter from an insurance company stating the amount it paid to repair the chain link fence and the fence owner ’ s deductible. Taie did not object to the evidence or pre sent any evidence of his own. The district court ordered restitution in the full amount requested by the State. On appeal, Taie argued that the restitution award for the motorcycle repairs was unsupported by the evidence because the State failed to submi t estimates from a professional repair shop and because Taie failed to keep track of his actual out

- of

- pocket expenses in making the repairs himself. Taie also challenged the sufficiency of the evidence for
the restitution related to the chain link fence because it was not substantiated by an estimate or invoice showing the actual or estimated cost of the repair. This Court rejected Taie’s challenges, noting Taie’s arguments were flawed because they did not recognize that the insurance companies were enti tled to restitution for their economic losses, and the evidence presented
showed the amount of that loss. Id. at 879

- 80, 71 P.3d at 478

- 79.
Unlike Taie , Hamann challenges whether the damages claimed were caused by his
criminal conduct , not the sufficien cy of evidence with respect to the amount paid . Also, unlike
in Taie , the State presented no testimony in support of its restitution request
, and Hamann objected to the State’s request by ask ing the court to leave restitution open until the State presente d additional information explaining the bases for the requested restitution. By our opinion, we do not suggest that invoices are required in all cases in order to support a restitution award, but the State must still present evidence that the restitution requested is based on economic loss caused by the defendant’s criminal conduct. Such evidence is absent in this case. Accordingly, t he judgment s and orders of restitution are vacated

. Chief Judge GRATTON and Judge GUTIERREZ, CONCUR

.