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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49311

STATE OF IDAHO,

Plaintiff-Respondent,

v.

BART JAMES SMITH,

Defendant-Appellant.

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Filed: December 19, 2022

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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. 
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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.
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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). 
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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.

. . . .
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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.

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 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.
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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.”

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 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.
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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,

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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.
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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.