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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36784

STATE OF IDAHO,

Plaintiff-Respondent,

v.

BRENT W. HIGLEY,

Defendant-Appellant.

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2010 Opinion No. 85S

Filed: December 21, 2010

Stephen W. Kenyon, Clerk

SUBSTITUTE OPINION

THE COURT’S PRIOR OPINION

DATED DECEMBER 15, 2010 IS 

HEREBY WITHDRAWN

Appeal from the District Court of the Fifth Judicial District, State of Idaho, 

Jerome County. Hon. John K. Butler, District Judge. 

Order of restitution, affirmed.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy 

Attorney General, Boise, for respondent. 

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GUTIERREZ, Judge

Brent W. Higley was convicted of conspiracy to commit robbery for his role in the 

robbery of a Maverik convenience store. He appeals from the district court’s order of restitution 

following his guilty plea. We affirm. 

I.

FACTS AND PROCEDURE

Robert Hainline worked full-time at Wal-Mart and also as a clerk at a Maverik 

convenience store. During a shift at Maverik, he was confronted by a man armed with a gun 

who demanded all of the money from the till. After a few days off, Hainline returned to work, 

but after one day found that he could not “focus” and that he “panicked” whenever a customer 

entered. He sought the assistance of a counselor, who recommended that he quit his job at 
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Maverik because of the symptoms he was experiencing that were consistent with post-traumatic 

stress disorder. 

Hainline followed the counselor’s advice, but continued to work his full-time job at WalMart. Approximately two and a half months later Hainline was able to find a job at Burger King 

for a slightly lower hourly wage than he had received at Maverik. He continued to work both 

jobs for approximately two and a half months until he moved to another city. 

Based on his role in the Maverik robbery, Higley pled guilty to conspiracy to commit 

robbery. He was sentenced to a period of imprisonment and ordered to pay restitution. Pertinent 

to this appeal, Hainline requested restitution for lost wages for the period after he stopped 

working at Maverik and began working at Burger King. After a hearing during which Higley 

objected to an award of restitution, the court granted Hainline’s request and ordered Higley to 

pay Hainline a total of $2,665.88. Higley now appeals the order of restitution. 

II.

ANALYSIS

Higley contends that the district court erred in finding that Hainline’s lost income was

“economic loss” as defined in Idaho Code § 19-5304 and awarding restitution of approximately 

$2,700. Specifically, Higley contends restitution was not appropriate under the statute because 

Hainline testified that he had quit his job based on “purely emotional distress” and that any loss 

suffered by Hainline was in an effort to prevent future harm. 

Orders for the payment of restitution to crime victims are governed by I.C. § 19-5304. 

State v. Gonzales, 144 Idaho 775, 777, 171 P.3d 266, 268 (Ct. App. 2007); State v. Taie, 138 

Idaho 878, 879, 71 P.3d 477, 478 (Ct. App. 2003). The decision whether to require restitution is 

committed to the trial court’s discretion, whose findings of fact will not be disturbed if supported 

by substantial evidence. State v. Schultz, 148 Idaho 884, 886, 231 P.3d 529, 531 (Ct. App. 

2008); State v. Smith, 144 Idaho 687, 692, 169 P.3d 275, 280 (Ct. App. 2007). It is generally 

recognized, however, that courts of criminal jurisdiction have no power or authority to direct 

reparations or restitution to a crime victim in the absence of a statutory provision to such effect. 

Schultz, 148 Idaho at 886, 231 P.3d at 531; Gonzales, 144 Idaho at 777, 171 P.3d at 268; State v. 

Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct. App. 2002). Therefore, the trial court’s 

exercise of discretion in requiring restitution must be within the boundaries provided in I.C. 
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§ 19-5304. Schultz, 148 Idaho at 886, 231 P.3d at 531; Gonzales, 144 Idaho at 777, 171 P.3d at 

268; State v. Cheeney, 144 Idaho 294, 296, 160 P.3d 451, 453 (Ct. App. 2007). 

Restitution may be ordered only for actual economic loss suffered by a victim. 

I.C. §§ 19-5304(1)(a), (2). “Economic loss” is defined as follows: “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 losses or 

expenses, such as medical expenses resulting from the criminal conduct, but does 

not include less tangible damage such as pain and suffering, wrongful death or 

emotional distress.

I.C. § 19-5304(1)(a). It includes necessary expenses or losses that the victim incurred in order to 

address the consequences of the criminal conduct. Gonzales, 144 Idaho at 778, 171 P.3d at 269. 

One of the purposes of restitution is to obviate the need for victims to incur the cost and 

inconvenience of a separate civil action in order to gain compensation for their losses. Schultz, 

148 Idaho at 886, 231 P.3d at 531; Gonzales, 144 Idaho at 778, 171 P.3d at 269; State v. Parker,

143 Idaho 165, 167, 139 P.3d 767, 769 (Ct. App. 2006); State v. Waidelich, 140 Idaho 622, 624, 

97 P.3d 489, 491 (Ct. App. 2004). However, the statute disallows restitution for noneconomic 

damages that might be available in a civil lawsuit, such as pain and suffering, wrongful death, 

emotional distress, and the like. Gonzales, 144 Idaho at 778, 171 P.3d at 269; Parker, 143 Idaho 

at 167, 139 P.3d at 769.

The district court ordered restitution for Hainline’s lost wages between the date that 

Hainline quit his job at Maverik and when he found a new job at Burger King. In doing so, the 

court stated:

The court’s understanding of the testimony is that Mr. Hainline, because 

of the crime itself, being confronted with a firearm in an armed robbery, that that 

created post traumatic stress disorder for him. He attempted to return to work. 

He was unable to work his job following that incident.

On the recommendation of a counselor . . . [Mr. Hainline] terminated his 

job at Maverik and sought additional employment at Burger King, which was at 

an income less than what he was earning at Maverik.

The court does believe that the lost income directly resulting from the 

recommendations of [the counselor] are economic loss. It is not something that 

happened in the future. It’s something that is happening in the present. It’s a 

reaction that the victim is experiencing as a result of the event in question.

The court, however, denied restitution for lost wages for the period of time that Hainline 

was unemployed following his move to Rupert, deciding that “[t]hat income could very well fall 
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within the statements of Gonzales that it relates to a future event, not something that’s occurred 

presently.” 

The evidence regarding the counselor’s assessment and recommendation was in the form 

of a letter from Hainline’s counselor to the deputy prosecuting attorney, wherein she stated:

Mr. Hainline had an assessment counseling session with me in late 

January 2008 just days after he was the victim of an armed robbery while he was 

clerking at the Jerome Maverik store. Among other aspects of the robbery, he 

reported that a weapon had been pointed directly at him during the incident 

causing him great fear and, as a result, he kept reliving the incident.

Mr. Hainline presented with symptoms consistent with post traumatic 

stress disorder. Directly after the incident he kept clerking at the Maverik and the 

robber had not been apprehended. This was compounding his symptoms. Given 

this situation, the most reasonable course of action to ameliorate his post 

traumatic stress was for him to remove himself from the situation where the 

terrifying incident occurred. Therefore, a recommendation that he leave his 

employment at Maverik and seek another job was made. 

Higley’s primary argument on appeal is that Hainline’s lost wages were due to a decision 

that Hainline made subsequent to the crime in order to prevent similar crime from occurring 

again--in other words it was a preventative step--which is not reimbursable under the statute 

pursuant to Waidelich, 140 Idaho at 624, 97 P.3d at 491, and Gonzales, 144 Idaho at 778, 171 

P.3d at 269. In Waidelich, the victim sought restitution for the cost of boarding her puppies 

during the day because she was afraid that the defendant, who had been convicted of previously 

attempting to steal them, would return to take them. While recognizing that the victim’s fear of a 

future violation may have been valid, we noted that the victim’s own assessment of actions 

necessary to prevent future harm was not a legal basis to sustain the restitution order. Id. at 624, 

97 P.3d at 491. Accordingly, we held that the cost of preventative measures taken by a victim 

after a crime are not direct out-of-pocket expenses that are reimbursable under the restitution 

statute. Id. 

In Gonzales, the defendant was convicted of unlawful penetration by use of a foreign 

object, and his victim requested restitution for vocational school tuition and supplies that she 

forfeited after the crime because she felt afraid to return to school fearing that another similar 

incident would occur. We noted that the victim did not state that she was unable to attend the 

program because of being physically injured by the crime or because she was busy meeting with 

police or testifying in the case. We concluded that like the victim in Waidelich, the Gonzales
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victim incurred the expenses because of her efforts to prevent possible future harm and therefore 

they were not subject to restitution under the statute. Id. at 779, 171 P.3d at 270. 

Higley contends that where the record shows that Hainline suffered no physical injuries 

and that he was able to maintain full-time employment at Wal-Mart during the period in 

question, the expense at issue was incurred because Hainline, like the victims in Gonzales and 

Waidelich, was attempting to “prevent possible future harm.” Upon examination of the record, 

we conclude that this case is distinguishable from Gonzales and Waidelich. Despite Higley’s 

attempt to characterize Hainline’s action as preventative, the letter submitted by his counselor 

indicates that she recommended he quit his job based on the symptoms he was experiencing at 

the time (including “reliving” the incident), not upon a desire to help him dissolve any fear that 

such an incident would happen again in the future. In addition, Hainline testified that he quit 

because he “worked there one day and I couldn’t focus. . . . Every time the--a customer came in, 

I panicked and I couldn’t--I just couldn’t work there anymore.” Thus, he testified as to an 

inability to continue work at Maverik, as distinguished from our recognition in Gonzales that the 

victim had never indicated her inability to continue school. 

Higley also contends that the district court’s finding that Hainline’s inability to return to 

work was due to post-traumatic stress disorder was “inaccurate” because there was “no evidence 

that Mr. Hainline was actually diagnosed with, or suffered from, post traumatic stress disorder.” 

Specifically, Higley points out that counselor’s letter only indicated that Hainline had presented 

with symptoms “consistent” with post-traumatic stress disorder and that determination had been 

made after only one meeting. As we noted above, a court’s findings of fact will not be disturbed 

if supported by substantial evidence and we conclude here that there was sufficient evidence to 

support such a finding. The record establishes that Hainline began exhibiting symptoms 

immediately following his return to work after being robbed at gunpoint, that he sought 

counseling as a result, and that the counselor attributed his symptoms to the robbery incident and 

recommended that he quit his job due to those symptoms. That the counselor only saw him once 

and described his symptoms as merely “consistent with” post-traumatic stress disorder are not 

facts which render the court’s finding unsupported by substantial evidence.1 

 

1 Higley also argues that restitution should not have been ordered because there was no 

evidence in the record whether there were other steps short of quitting his job--i.e., taking 
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We conclude that restitution for lost wages in this instance was appropriate under the 

restitution statute, and the district court’s restitution order was not an abuse of discretion. The 

order of restitution is affirmed.

Judge GRATTON and Judge MELANSON, CONCUR.

 

additional days off and continuing counseling--that Hainline could have taken in order to remain

employed at Maverik. However, Higley does not cite any authority for the proposition that such 

an inquiry is relevant to whether restitution is appropriate under the statute and thus we will not 

address his argument on appeal. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) 

(holding that a party waives an issue on appeal if either authority or argument is lacking).