University of Idaho College of Law

Dunham, Kassadie

Ramalingam, Sunil

Boyce, Steven

Massoth, Elisa

Bean, Alayne

McFarland, Ryan

Bennett, Matthew

Rippel, Paul

Wolfe, Matthew

Olson, Zach

Conrad, Meghan Sullivan

English

The Impact of Remote Work on Post-Pandemic Law

Grigg, Dani

Eller v. ISP and the State of Whistleblower Protections in Idaho
Issue Summary
By Dani Grigg
Idaho Law Review
Introduction
Idaho whistleblower law is having a moment. Over the last couple years, the Idaho
Supreme Court has taken up whistleblower issues twice, and the Idaho legislature has stepped in
with new whistleblower legislation.
First, in a 2019 case known as Eller v. Idaho State Police, the Idaho Supreme Court held
that courts in government whistleblower lawsuits are free to award damages higher than the
$500,000 cap that applies to other tort claims, and that whistleblower plaintiffs in such cases may
receive awards for infliction of emotional distress. While the decision opened the door to
potentially huge government employer liability, the Idaho legislature acted quickly to shut it. In
its 2020 session, the legislature enacted legislation that limits noneconomic damages in such
lawsuits to $370,000.
In 2020, another government whistleblower case made its way to the Idaho Supreme
Court. The Court again sided with whistleblowers, holding they can receive front pay as part of
their damages.
The Eller case
The Eller lawsuit had its roots in a 2011 car accident that plaintiff Brandon Eller
investigated in his capacity as a member of the Idaho State Police District 3 Crash
Reconstruction Unit (CRU).1 In October of that year, a Payette County deputy sheriff responded
to a 911 call.2 The deputy  was driving at a speed well above the speed limit on a two-lane
highway when he came upon a civilian driving his Jeep in the same direction.3 The deputy
attempted to pass on the left just as the civilian made a left turn into his driveway.4 The deputy’s
vehicle crashed into the Jeep, and the civilian died as a result.5
Gem County charged the deputy with vehicular manslaughter in 2012.6 Going against the
wishes of some of his superior officers, Eller testified at a preliminary hearing that the deputy
had caused the civilian’s death.7 Later, Eller objected to a new Idaho State Police (ISP) policy
7 Eller, 443 P.3d at 166, 165 Idaho at 152.
6 Id. at 166, 165 Idaho at 152.
5 Id.
4 Id.
3 Id.
2 Id. at 165, 156 Idaho at 151.
1 Eller v. Idaho State Police, 443 P.3d 161, 166–67, 165 Idaho 147, 152–53 (2019).
1
Grigg: Eller v. ISP and the State of Whistleblower Protections in Idaho
Published by Digital Commons @ UIdaho Law, 2021
requiring employees to destroy drafts of official crash reports.8 Eller claimed ISP retaliated by
changing his schedule and duties and denying a request to take on more responsibility.9
Eller sued, seeking economic and emotional distress damages.10 In 2017, a jury awarded
Eller economic damages of just over $30,000 and emotional distress damages of $1.5 million.11
The judge applied the Idaho Tort Claims Act (ITCA) cap and reduced the total tort damages to
$1 million ($500,000 for each of two instances of retaliation).12
Both parties appealed. Eller argued, among other things, that claims under the
Whistleblower Act were not subject to the ITCA damages cap.13 ISP argued, among other points,
that the Whistleblower Act did not allow for any non-economic damages.14
Before the Eller case, the Idaho Supreme Court had not specifically addressed either of
these issues. In its Eller decision, the court construed the Whistleblower Act broadly—as it does
with all remedial acts—and resolved both issues in favor of whistleblowers.15 The Whistleblower
Act permits emotional distress damages, it said, and the ITCA liability cap does not apply.16
The court remanded the Eller case back to the district court to reevaluate damages.17 A
few months later, Eller and ISP settled the case for $1.3 million.18
Legislation
The Idaho Legislature reacted quickly. In its 2020 session, a bill amending the
Whistleblower Act to impose a strict economic damages cap flew through the body, passing
56–9 in the House of Representatives and 31–1 in the Senate.19 Supporters iterated a need to
protect not just whistleblowers but also taxpayers.20 Going forward, while economic damages
remain limitless, noneconomic damages may not exceed the general personal injury limit
imposed by other legislation.21 If Eller were to bring his 2011 claim today, his noneconomic
damages would be capped at $370,000.22
22 See Ridler, supra note 15.
21 H.B. 583, 65th Leg., 2d Sess. (Idaho 2020); Idaho Code § 6-1603(1) (2019).
20 Keith Ridler, Bill Limiting Idaho Whistleblower Lawsuits Heads to Governor, AP NEWS (Mar. 18, 2020),
https://apnews.com/15c3b0bcdd44ea39c797d0fc2ac0c24b.
19 House Bill 583, IDAHO LEGISLATURE, https://legislature.idaho.gov/sessioninfo/2020/legislation/h0583/ (last visited
Apr. 7, 2020); Governor Signs Bill Limiting Idaho Whistleblower Lawsuits, AP NEWS (Mar. 25, 2020),
https://apnews.com/6c91d66cb1c64ec4cf058fb7c18fb2fe.
18 ISP Resolves Whistleblower Lawsuit with Trooper, IDAHO PRESS (Aug. 29, 2019),
https://www.idahopress.com/news/local/isp-resolves-whistleblower-lawsuit-with-trooper/article_0de18432-5e98-51c
e-b0ff-147cc30ee2ba.html.
17 Id. at 178, 165 Idaho at 164.
16 Id. at 169–70, 165 Idaho at 155-56.
15 Eller, 443 P.3d at 170, 165 Idaho at 156.
14 Brief for Respondent at 9, 17, Eller v. Idaho State Police, 443 P.3d 161, 165 Idaho 147 (2019) (No. 45698-2018
and 45699-2018).
13 Appellant Brandon Eller’s Opening Brief at 16, Eller v. Idaho State Police, 443 P.3d 161,165 Idaho 147 (2019)
(No. 45698-2018 and 45699-2018).
12 Id.
11 Id.
10 Id. at 165, 154 Idaho at 151.
9 Id.
8 Id.
2
Idaho Law Review Spotlight, Vol. 1 [2021], Iss. 6, Art. 1
https://digitalcommons.law.uidaho.edu/ilrspotlight/vol1/iss6/1
Smith v. Glenns Ferry
On April 28, 2020, the Idaho Supreme Court took up another case of first impression
concerning the Whistleblower Act.23 In 2016, Glenns Ferry Highway District laid off employee
Joanie Smith after she reported her supervisor for overcompensating herself.24 Smith sued her
former employer under the Whistleblower Act and won.25 It fell to the Court to resolve whether
damages in whistleblower cases could include front pay—payment awarded as a substitute for
job reinstatement—and whether whistleblower plaintiffs have the right to have front pay
damages determined by a jury.26
As in Eller, the Court resolved both issues in favor of whistleblowers. Front pay, it said,
is a subset of the “lost wages” specified in the Whistleblower Act as a potential form of relief.27
Furthermore, the Court said that despite its role as an alternative to the equitable remedy of
reinstatement, front pay is a legal remedy and is therefore subject to jury determination.28
The Court reinstated the jury’s front pay award of $187,500, which was in addition to its
back pay award of $63,044. 29
29 Id. at 1154, 1156, 166 Idaho 683. Back pay is the amount a person would have made if she had been allowed to
keep working between her termination and the trial. Id. at 1154, 166 Idaho at 683.
28 Id. at 1159, 166 Idaho at 687.
27 Id. at 1157, 166 Idaho at 685.
26 The trial court had held the jury’s award of front pay damages to be merely advisory. Smith, 462 P.3d at 1155, 166
Idaho at 683.
25 Id. at 1152, 1166, 166 Idaho at 680, 694.
24 Id. at 1151, 166 Idaho at 687.
23 Smith v. Glenns Ferry Highway Dist., 462 P.3d 1147, 166 Idaho 683 (2020).
3
Grigg: Eller v. ISP and the State of Whistleblower Protections in Idaho
Published by Digital Commons @ UIdaho Law, 2021


Eller v. ISP and the State of Whistleblower Protections in Idaho (Case Summary)

Durham, Craig

Cover v. Idaho Board of Correction
Practitioner Comment
by Craig Durham
Partner, Ferguson Durham, PLLC
Justice Harry Blackmun famously wrote in a 1994 dissent that “from this day forward, I
shall tinker no longer with the machinery of death.”1 Fed up with struggling to develop rules that
might give the death penalty a patina of constitutional fairness—loosening a bolt here, tightening
another one there—he abandoned the endeavor altogether.2 Even though Justice Blackmun never
again joined a majority opinion upholding a death sentence, the machinery trundles on, now in
its fifth decade since reinstatement.
On its surface, Cover v. Idaho Board of Correction3 is a public records act case. It is
about the extent to which Professor Aliza Cover was entitled to certain records from the Idaho
Department of Correction (“Department”) regarding the lethal injection executions of Paul
Rhoades and Richard Leavitt. The Idaho Supreme Court held that Cover should have received all
that she had requested under Idaho’s Public Records Act.
But Cover also illustrates the wider fight over the public’s right to inspect the continued
workability of the process that produces death sentences in its name. Idaho and other capital
punishment states want to withhold much of that information. They profess concern that
revealing the sources of their lethal drugs could chill those sources and jeopardize their ability to
carry out death sentences. Indeed, while Cover was pending, the Department changed its policy
to exempt specifically from disclosure all sources of chemicals, supplies, or services in an
execution.
But the argument for concealment reveals its own flaw. The death penalty continues to be
the subject of an ongoing and vigorous debate. A healthy democracy requires transparency so
that its citizenry can make informed decisions.
The public may see capital punishment as Justice Blackmun eventually did: a Rube
Goldberg contraption that is held together by duct tape and bailing wire. It is precisely because
an informed citizenry might question the Department’s practice of keeping a “Confidential Cash
Log” that recorded execution-related cash expenditures, as in Cover, that such information
should be disclosed. The public may also disapprove of purchasing unregulated drugs of an
unknown efficacy from a compounding pharmacy in a parking lot with a suitcase of cash, as
alleged in Cover. Or it may decide that these things are worth whatever value that the death
penalty brings.
3 167 Idaho 721, 476 P.3d 388 (2020)
2 Id. at 1160.
1 Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting)
1
1
Durham: Cover v. Idaho Board of Correction (Practitioner Comment)
Published by Digital Commons @ UIdaho Law, 2021
In Glossip v. Gross,4 the Supreme Court turned away an Eighth Amendment claim that a
drug used in Oklahoma’s lethal injection protocol might fail to render the inmate unconscious,
subjecting him to excruciating pain. Writing for the majority, Justice Alito noted that the
responsibility to resolve thorny moral and philosophical questions surrounding capital
punishment rests primarily with the people. If he’s right, then the people must have all of the
facts. They must be able to see inside of Justice Blackmun’s machine.
4 576 U.S. 863 (2015).
2
2
Idaho Law Review Spotlight, Vol. 1 [2021], Iss. 4, Art. 10
https://digitalcommons.law.uidaho.edu/ilrspotlight/vol1/iss4/10


Cover v. Idaho Board of Correction (Practitioner Comment)

Brassey, Andrew C.

Eller v. ISP and the State of Whistleblower Protections in Idaho
Practitioner Comment
By Andrew C. Brassey
Partner, Brassey Crawford PLLC
I was lead counsel for the Idaho State Police in the Eller matter at trial and throughout the
appeal process. I was appointed as trial counsel after the plaintiff sought to amend his complaint
to add claims for negligent infliction of emotional distress, several years after the proceedings
had been initiated. Over the course of my career I have been involved in numerous employment
issues, Eller being the most recent.
Frankly, at the time the Eller decision was entered it had an enormous impact on
whistleblower claims. The most significant impact can be found in the court’s observation that
the Idaho Protection of Public Employees Act (the “Whistleblower Act”) is a remedial statute to
be liberally construed, coupled with its holding that “the Whistleblower Act provides. . .
claimants with a remedy for all actual damages, based on all claims, including those otherwise
available under common law tort claims” (emphasis added). In light of the court’s ruling,
tort-based damages could be recovered against governmental entities outside the purview of the
Idaho Tort Claims Act (“ITCA”), though its impact was lessened given the subsequent legislative
action taken in response.
While there were many issues addressed on appeal in Eller, the court also overturned its
prior decision in Wright v. Ada County, 160 Idaho 491, 376 P.3d 58 (2016).  The Wright decision
was issued just one year prior to the jury trial in Eller and formed the basis for many of the legal
arguments which we presented. In Wright, the court had recognized that tort actions (specifically,
negligent infliction of emotional distress) could be brought in conjunction with whistleblower
claims. In so doing, the court signaled that non-economic damages, including those for emotional
distress, were distinct from those damages obtainable under the Whistleblower Act, which left
such damages subject to the cap provided in the ITCA. The practical effect of the Eller court’s
reversal was to gut the ITCA within the context of whistleblower claims, in that allegedly
tortious conduct by governmental agents or entities was no longer governed by the ITCA.
The Idaho Legislature, recognizing the impact of Eller on tort claims against
governmental entities, responded by adding subsection (5) to Idaho Code, § 6-2105. By limiting
recovery for non-economic damages under the act to the cap provided under Idaho Code §
6-1603, the legislature not only mitigated the significant impact Eller might otherwise have had
on whistleblower claims and restored in a way the status quo that existed under Wright, but also
left those non-economic damages subject to an even more stringent limitation. Given the
legislative response, it appears that the Eller decision—while initially a boon for whistleblower
claimants—has not significantly impacted the manner in which whistleblower claims are
approached from a defense perspective.
1
Brassey: Eller v. ISP and the State of Whistleblower Protections in Idaho
Published by Digital Commons @ UIdaho Law, 2021


Eller v. ISP and the State of Whistleblower Protections in Idaho (Practitioner Comment)

Smikel, Kraig A.

State v. Clarke: One year later
Practitioner Comment
Kraig A. Smikel
Attorney, Youth Division, DisAbility Rights Idaho1
The Clarke decision was one that, from the prosecution perspective, left many questions
when it first came out. I was a deputy city attorney when the decision came down from the Idaho
Supreme Court. Further, I was the first in my office to have a Clarke-related motion to suppress
filed in one of my cases. The case involved a driving under the influence (“DUI”) arrest where
the officers had not observed the defendant driving the vehicle, nor had the officers observed the
defendant in actual physical control of the vehicle.
I remember reviewing the motion to suppress and just brainstorming ways to approach
this issue. I asked questions like:
● What was the legislative intent of the DUI statute?
● How does this affect implied consent under Griffiths?
● Were DUIs even contemplated in the Clarke decision?
● What is “in the presence” and does that change with DUIs?
As you can probably guess, I got a little creative with my initial response. Ultimately, I won the
battle but lost the war. In other words, the motion to suppress was denied initially, but then that
finding was overturned on appeal.
From the prosecution perspective, the Clarke decision left many unknowns, including
many questions regarding its application to DUIs. There were many prosecution agencies across
the State scrambling to figure out how to save some of their cases that, before Clarke, would
have been otherwise legal.
Further, prosecution agencies were scrambling to advise their respective police agencies
on what Clarke meant and how it would apply henceforth. This obviously was a somewhat
complicated task as they were trying to advise on something that had yet to be fleshed out. For
prosecution agencies advising their police agencies, it was like trying to stare into a crystal ball
on what issues may arise from Clarke based on what little information we had from our own and
other jurisdictions.
Also, as prosecution agencies were getting creative in their arguments addressing Clarke,
defense attorneys were getting just as creative, if not more creative, in finding ways that Clarke
applied. Additionally, months after the decision, there was a lack of consistency between
magistrate courts on how Clarke applied.
1 Former Deputy Prosecuting Attorney, Canyon County Prosecuting Attorney’s Office, Former Deputy Prosecutor,
City of Boise.
1
Smikel: State v. Clarke: One Year Later (Practitioner Comment)
Published by Digital Commons @ UIdaho Law, 2021
Overall, the Clarke decision had an immediate impact on prosecution agencies and left
many questions followed by creative solutions. Although many questions have now been
answered, the first year of Clarke was a moment of uncertainty for many prosecution agencies
and local law enforcement as courts worked to flesh out the holding.
2
Idaho Law Review Spotlight, Vol. 1 [2021], Iss. 4, Art. 7
https://digitalcommons.law.uidaho.edu/ilrspotlight/vol1/iss4/7


State v. Clarke: One Year Later (Practitioner Comment)

In this episode we discuss the nomination process of Justices to the U.S. Supreme Court with Prof. Michael Gerhardt (North Carolina)

Jellum, Linda

Episode 3: The Supreme Court Nomination Process with Prof. Michael Gerhardt (North Carolina)

https://digitalcommons.law.uidaho.edu/not_reported/8128/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
2-11-2021 
State v. Whitaker Appellant's Brief Dckt. 48413 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
Recommended Citation 
"State v. Whitaker Appellant's Brief Dckt. 48413" (2021). Not Reported. 7129. 
https://digitalcommons.law.uidaho.edu/not_reported/7129 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) NO. 48413-2020
)
v. ) ADA COUNTY NO. CR01-20-25180
)
BRIAN JAMES WHITAKER, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Brian Whitaker appeals from the district court’s Judgment of Conviction and Order of
Commitment. Mr. Whitaker entered into a plea agreement with the State and pled guilty to
possession of a controlled substance and eluding a peace officer. Following his guilty plea,
Mr. Whitaker was given an aggregate sentence of seven years with two years fixed. He asserts
that the district court abused its discretion when it failed to give proper consideration to the
mitigating factors present in his case.
Electronically Filed
2/11/2021 11:53 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
Mr. Whitaker was pulled over for driving with a suspended license. (PSI, pp.206, 214.)
The officer returned to his car to write Mr. Whitaker citations for failure to provide proof of
insurance, obstructed view of the front windshield, and failure to carry vehicle registration.
(PSI, p.206.) As the officer returned to speak with Mr. Whitaker and asked him to step out of his
vehicle to do so, Mr. Whitaker began driving away. (PSI, p.206.) As police were pursuing him,
Mr. Whitaker began driving at 80 mph through downtown Boise before driving his vehicle down
the Greenbelt pathway. (PSI, p.206.) He parked his vehicle on the Greenbelt and began running
away. (PSI, p.209.) As he was running away, witnesses reported that Mr. Whitaker threw a
backpack in the bushes. (PSI, pp.209-10.) The backpack contained one unused syringe and some
clothing. (PSI, pp.209-10.) As officers approached the abandoned vehicle, they observed a small
blue baggie containing methamphetamine lying on the driver’s floorboard. (PSI, p.210.) Upon
searching the vehicle, officers found a wallet containing a social security card, Quest card, and
debit card belonging to Mr. Whitaker. (PSI, p.210.)
The State filed a criminal complaint alleging Mr. Whitaker committed felony possession
of a controlled substance, felony eluding a peace officer, and driving without privileges.
(R., pp.7-8.) After waiving his preliminary hearing, the magistrate judge bound him over to
district court. (R., p.18.) The State then filed an Information charging Mr. Whitaker with the
three charges alleged in the complaint. (R., pp.21-22.) Mr. Whitaker entered into a plea
agreement with the State and pled guilty to possession of a controlled substance and eluding a
peace officer, and agreed to plead guilty to two counts of misdemeanor domestic battery in a
3
separate case. (8/19/20 Tr.,1 p.5, L.15 - p.7, L.2.) In exchange, the State recommended a seven-
year sentence with three years fixed for the possession charge. (8/19/20 Tr., p.6, L.24 - p.7,
L.19.) The State had no required recommendation for the eluding charge, except that the
sentence run concurrent to the possession charge. (R., pp.24-31, 33-34; 10/21/20 Tr., p.6, Ls.12-
17.) Defense counsel requested that Mr. Whitaker be screened for mental health court. (8/19/20
Tr., p.6, Ls.2-4, p.7, Ls.4-8.) At the sentencing hearing in October 2020, Defense counsel asked
the Court to consider concurrent sentences of five years, with two years fixed on each offense, to
run concurrently, and retained jurisdiction (a “rider”). (10/21/20 Tr., p.12, Ls.7-11, p.15, Ls.1-9.)
Mr. Whitaker was not admitted into a Mental Health Court program. (10/21/20 Tr., p.6, Ls.19-
22, p.13, Ls.15-22; see also R., p.36.) The Court sentenced Mr. Whitaker to seven years with two
years fixed for possession of a controlled substance, and five years with two years fixed for
felony eluding, to run concurrently. (10/21/20 Tr., p.22, Ls.1-9, R., pp.39-43.) The Court made a
recommendation to the Idaho Department of Corrections that Mr. Whitaker receive substance
abuse treatment, Thinking for a Change, and mental health counseling and treatment. (10/21/20
Tr., p.22, Ls.10-15, p.23, Ls.10-16; R., p.40.) Mr. Whitaker timely filed a notice of appeal.
(R., pp.48-50.)
ISSUE
Did the district court abuse its discretion by imposing an excessive aggregate sentence of seven
years with two years fixed?
1 There are two transcripts on appeal in one electronic document. Each will be cited with
reference to its internal pagination. The first transcript, cited as “8/19/20 Tr.,” contains the entry
of plea hearing held on August 19, 2020 (pages one to nine of the overall document). The second
transcript, cited as “10/21/20 Tr.,” contains the sentencing hearing held on October 21, 2020
(pages ten to twenty of the overall document).
4
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Excessive Aggregate Sentence Of
Seven Years, With Two Years Fixed, Upon Mr. Whitaker
Mr. Whitaker asserts that, given any view of the facts, his aggregate sentence of seven
years with the first two years fixed, is excessive. Where a defendant contends that the sentencing
court imposed an excessively harsh sentence, the appellate court will conduct an independent
review of the record giving consideration to the nature of the offense, the character of the
offender, and the protection of the public interest. See State v. Reinke, 103 Idaho 771 (Ct. App.
1982).
The Idaho Supreme Court has held that, “‘[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
the sentence.’” State v. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)). Mr. Whitaker does not allege that his sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, he must show that in light of the governing
criteria, the sentence was excessive considering any view of the facts. Id. The governing criteria
or objectives of criminal punishment are: (1) protection of society; (2) deterrence of the
individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or
retribution for wrongdoing. Id.
Appellate courts use a four-part test for determining whether a district court abused its
discretion: Whether the trial court: (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).
5
Here, Mr. Whitaker asserts the district court abused its discretion by imposing an
excessive sentence under any reasonable view of the facts. Specifically, he contends the district
court should have sentenced him to a lesser term of imprisonment, or retained jurisdiction, in
light of the mitigating factors, including his troubled childhood, impact of his substance abuse on
his behavior and his need for treatment, mental health issues, and family support.
Mr. Whitaker’s troubled childhood stands in favor of mitigation. The Idaho Court of
Appeals has recognized that a defendant’s “extremely troubled childhood is a factor that bears
consideration at sentencing.” State v. Williams, 135 Idaho 618, 620 (Ct. App. 2001).
Mr. Whitaker grew up in an unstable, low-income environment, with two drug-addicted parents
who were constantly fighting. (PSI, pp.10, 220, 316.) His parents were never legally married,
and separated when he was about . (PSI, p.317.) Mr. Whitaker’s family history is
rife with drug abuse, mental illness, and criminal behavior. (PSI, p.220.) His mother, father, and
sisters all have a history of drug or alcohol abuse, and have felony convictions. (PSI, pp.70, 220.)
Additionally, his mother, sister and brother all suffer from depression, and one of his sisters has
been diagnosed with paranoid schizophrenia. (PSI, pp.73, 180.) Throughout his childhood, his
father was in and out of prison and his mother some spent time in the Utah State Prison.
(PSI, pp.10, 337.) After his parents separated, Mr. Whitaker and his siblings were bounced back
and forth between their parents. (PSI, p.317.) At one point in his childhood, his mother left him
and his siblings with a babysitter for over a year. (PSI, p.10.) His mother often let Mr. Whitaker
and his siblings “run free without discipline.” (PSI, p.10.) He reported in the presentence
investigation report (“PSI”) that his father “kicked my ass daily” for behavior that his mother
allowed. (PSI, p.10.) In a letter of support from Mr. Whitaker’s mother, she stated that her
children were raised in an angry, abusive family environment. (PSI, p.288.) She acknowledged
6
that she did not always do the best or right thing for her children, and that she and her children’s
father made a lot of mistakes. (PSI, p.288.)
Mr. Whitaker’s substance abuse issues, the impact of his substance abuse on his behavior,
and his need for treatment are also strong factors in favor of mitigation. The impact of substance
abuse on the defendant’s criminal conduct is “a proper consideration in mitigation of punishment
upon sentencing.” State v. Osborn, 102 Idaho 405, 414 n.5 (1981). In this case, forty-five-year-
old Mr. Whitaker has a long history of using crack cocaine, marijuana, methamphetamine,
heroin, cocaine, and hallucinogens, dating back to 1985. (PSI, p.11.) According to the PSI, he
first tried alcohol or drugs at , and began using methamphetamine and cocaine at
 (PSI, pp.11, 109, 316.) Mr. Whitaker has an extensive juvenile record and was first
arrested at . (PSI, pp.8, 14-20.) He reported that out of the past ninety days prior to
the Global Appraisal of Individual Needs (“GAIN”) evaluation, he used methamphetamine on
thirty of those days. (PSI, p.109.) The GAIN evaluator diagnosed Mr. Whitaker with severe
Amphetamine Use Disorder. (PSI, pp.108-09.) Mr. Whitaker acknowledged that his drug use is
what has led him to the commission of his crimes. (PSI, p.22.). On the day of his arrest for the
recent offenses, Mr. Whitaker reported that he injected “two grams” of methamphetamine, and
stated that he had been injecting it for “a few months every day.” (PSI, p.23.) The GAIN
evaluator recommended Mr. Whitaker for Level 2.1 Co-occurring Enhanced Intensive Outpatient
treatment. (PSI, p.26.)
In addition to substance abuse, Mr. Whitaker has also struggled with severe mental health
issues. “[T]he defendant’s mental condition is simply one of the factors that must be considered
and weighed by the court at sentencing.” State v. Delling, 152 Idaho 122, 132 (2011). In 2006,
Mr. Whitaker was diagnosed with paranoid schizophrenia. (PSI, p.9.) From 2015-2020, he had
7
been receiving mental health care services from Terry Reilly Health Services (“Terry Reilly”).
(See generally PSI, pp.160-203.) Terry Reilly diagnosed him with psychoactive substance
induced psychosis with hallucinations, substance induced mood disorder, methamphetamine use
disorder, cannabis use disorder, depression, anxiety, attention deficit hyperactivity disorder, and
noted a history of schizophrenia. (PSI, pp.13-14, 184.) The mental health examination report
conducted by the Department of Health and Welfare provided rule out diagnoses for severe
Amphetamine Use Disorder, Major Depressive Disorder, Generalized Anxiety Disorder, and
Attention Deficit/Hyperactivity Disorder. (PSI, p.35.) Several doctors who have treated him
noted that he likely has a mood disorder which is exacerbated by drug use. (PSI, pp.71, 81, 84,
100, 190.)
Mr. Whitaker has voluntarily admitted himself to mental health treatment facilities on
several occasions. He reported he has been admitted to Intermountain Hospital in 2006,
Allumbaugh House in 2017 and 2020, and Cottonwood Creek Behavioral Health Services
(“Cottonwood”) in 2019 and 2020. (See PSI, pp.9-14, 70, 151, 180.) Upon his admission to
Cottonwood in 2019, Mr. Whitaker reported that he has been having thoughts of hurting himself,
and the only thing that alleviates it is when he uses drugs. (PSI, p.70.) He further reported that he
put a knife to his throat prior to admission because voices were telling him to do it. (PSI, p.70.)
In May 2020, Mr. Whitaker arrived in the emergency department at St. Luke’s Hospital with
multiple knives and reported recent cutting behaviors. (PSI, p.151.) It was recommended that
Mr. Whitaker continue inpatient psychiatric hospitalization. (PSI, p.154.) The social worker who
conducted Mr. Whitaker’s mental health evaluation noted that a mental health hold should be
considered for Mr. Whitaker if he requests to be discharged. (PSI, p.152.) The GAIN evaluator
8
noted that without some form of treatment, it is likely Mr. Whitaker will continue to struggle
with symptoms and problems may increase. (PSI, p.37.)
Mr. Whitaker recognizes that he needs treatment and is ready to get the help that he
needs. When discussing his mental health hospitalizations, Mr. Whitaker stated that he went
there because “I was strung out, off my meds and was having homicidal and suicidal thoughts. I
wanted to get clean.” (PSI, p.23.) Upon his discharge from Cottonwood in 2020, it was noted
that he was help-seeking and able to form a plan upon discharge. (PSI, p.94.) Throughout the
years, he has tried multiple different medications to help alleviate his mental health issues. (PSI,
pp.71, 81, 84, 100, 137, 180, 190.) Mr. Whitaker is currently taking Zyprexa and Celexa, and
stated “when I’m clean and medicated, I’m good.” (PSI, pp.28, 32.) Prior to sentencing,
Mr. Whitaker applied for admission to the Rising Sun Sober Living and received an acceptance
letter. (PSI, pp.1-3.) Additionally, he received a letter of support from PEER Wellness Center
offering recovery support services. (PSI, pp.1-3.)
Notwithstanding his tumultuous childhood, drug addiction, and mental health issues,
Mr. Whitaker still has support from his family. In a self-evaluation, Mr. Whitaker wrote that his
family means the most to him. (PSI, p.21.) The Idaho Supreme Court noted in State v. Shideler,
103 Idaho 593, 594 (1982), that family and friend support were factors that should be considered
in the court’s decision as to what is an appropriate sentence. Id. Mr. Whitaker stated that he has
support from his mother and sister, noting that “[t]hey’ve both been clean over ten years.”
(PSI, p.31). His mother and sister often gave him rides, and allowed him to live with them prior
to his incarceration. (PSI, pp.93, 151.) In a letter of support, his mother pled for him to receive
treatment, noting that when he is sober, “he is the most kindhearted, good person there ever was,
and when he’s on meth, he turns into a totally different person with an anger problem.”
9
(PSI, p.288.) His mother admitted that she and his father did not teach him the fundamentals of
living to be successful in life, and that he needs treatment and classes to teach him life skills.
(PSI, p.10.) In a letter of support from Mr. Whitaker’s sister, she also requested that he receive
long term support and be taught how to live in today’s society. (PSI, p.10.)2
Despite Mr. Whitaker’s serious substance abuse addiction and significant mental health
issues, he has shown a willingness to try and overcome his addiction and get treatment.
Mr. Whitaker has taken positive steps towards his recovery by acknowledging he needs help and
demonstrating a desire to actively seek mental health and drug treatment. He has voluntarily
checked himself into treatment centers on several different occasions. He applied for, and was
accepted in to Rising Sun Sober Living. Although he had a difficult childhood, Mr. Whitaker has
maintained a relationship with his mother and sister, and stated that upon his release, they are
going to help him get into a halfway house. (10/21/20 Tr., p.18, Ls.16-24.) Additionally,
Mr. Whitaker stated that he has a job lined up upon his release. (See 10/21/20 Tr., p.18, Ls.12-
15.)
Proper consideration of these mitigating factors supported a more lenient sentence. In
light of these facts, Mr. Whitaker submits that the district court did not exercise reason, and thus
abused its discretion, by declining to retain jurisdiction, and by sentencing him to serve seven
years with two years fixed.
2 Defense counsel was operating under the assumption that the letter itself was before the district
court (10/21/20 Tr., p.14, Ls.5-10; see PSI, p.10), however, the letter is not attached to the PSI
(see generally PSI) and undersigned counsel contacted the district court to obtain the letter, and
was informed that no such letter exists in the district court record.
10
CONCLUSION
Mr. Whitaker respectfully requests that this Court reduce his sentence as it deems
appropriate.  Alternatively, he respectfully requests this Court vacate his judgment of conviction
and remand this case to the district court for an order retaining jurisdiction.
DATED this 11th day of February, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 11th day of February, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Kylie M. Fourtner
KYLIE M. FOURTNER
Administrative Assistant
KAH/kmf


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5-18-2021 
State v. Stroud Appellant's Brief Dckt. 48439 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
I.S.B. #6406
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48439-2020
Plaintiff-Respondent, )
) BENEWAH COUNTY NO. CR05-18-486
v. )
)
BEDFORD BRUCE STROUD, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Bedford Bruce Stroud appeals from the district court’s order revoking his probation and
executing his underlying sentence of five years, with two years determinate, for injury to a child.
Mr. Stroud admitted to violating the terms of his probation and the district court revoked his
probation and executed the underlying sentence.  Mr. Stroud subsequently filed an Idaho
Criminal Rule (hereinafter, Rule) 35 motion for reduction of sentence, which was denied.
Mr. Stroud appeals, and he asserts that he district court abused its discretion by revoking his
probation and by denying his Rule 35 motion.
Electronically Filed
5/18/2021 11:33 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Statement of the Facts & Course of Proceedings
In 2018, Mr. Stroud was charged with felony injury to a child.  (R., p.62.)  He pleaded
guilty and the district court imposed a unified sentence of five years, with two years determinate,
and retained jurisdiction.  (R., p.102.)  The district court subsequently suspended the sentence
and placed Mr. Stroud on probation for a period of two years.  (R., p.110.)
In June, 2020, the State filed a report of probation violation.  (R., p.121.)  Mr. Stroud
admitted to violating the terms of his probation by changing his residence without the permission
of his probation officer.  (10/23/20 Tr., p.5, Ls.15-23.)  The parties agreed to “jointly recommend
that [Mr. Stroud] be given credit for the time served on the case, it’s over a hundred days, and
simply be placed back on supervised probation.”  (10/23/20 Tr., p.5, L.24 – p.6, L.3.)
However, the district court rejected the joint recommendation, revoked Mr. Stroud’s probation,
and executed the underlying sentence.  (10/23/20 Tr., p.12, Ls.14-22; R., p.141.)  Mr. Stroud
then filed a Rule 35 motion, which was denied.  (R., pp.147; 164.)  Mr. Stroud appealed.
(R., p.153.)  He asserts that the district court abused its discretion by revoking his probation and
by denying his Rule 35 motion.
ISSUES
I. Did the district court abuse its discretion when it revoked Mr. Stroud’s probation?
II. Did the district court abuse its discretion when it denied Mr. Stroud’s Rule 35 motion?
3
ARGUMENT
I.
The District Court Abused Its Discretion When It Revoked Mr. Stroud’s Probation
The district court is empowered by statute to revoke a defendant’s probation under
certain circumstances.  I.C. §§ 19-2602, -2603, 20-222.  The Court uses a two-step analysis to
review a probation revocation proceeding. State v. Sanchez, 149 Idaho 102, 105 (2009).  First,
the Court determines “whether the defendant violated the terms of his probation.” Id. Second,
“[i]f it is determined that the defendant has in fact violated the terms of his probation,” the Court
examines “what should be the consequences of that violation.” Id. The determination of a
probation violation and the determination of the consequences, if any, are separate analyses. Id.
Here, Mr. Stroud does not challenge his admission to violating his probation.  “When a
probationer admits to a direct violation of her probation agreement, no further inquiry into the
question is required.” State v. Peterson, 123 Idaho 49, 50 (Ct. App. 1992).  Rather, Mr. Stroud
submits that the district court abused its discretion by revoking his probation.
“After a probation violation has been proven, the decision to revoke probation and
pronounce sentence lies within the sound discretion of the trial court.” State v. Roy, 113 Idaho
388, 392 (Ct. App. 1987).  “A judge cannot revoke probation arbitrarily,” however. State v. Lee,
116 Idaho 38, 40 (Ct. App. 1989).  “The purpose of probation is to give the defendant an
opportunity to be rehabilitated under proper control and supervision.” State v. Mummert, 98
Idaho 452, 454 (1977).  “In determining whether to revoke probation a court must consider
whether probation is meeting the objective of rehabilitation while also providing adequate
protection for society.” State v. Upton, 127 Idaho 274, 275 (Ct. App. 1995).  The court may
4
consider the defendant’s conduct before and during probation. State v. Roy, 113 Idaho 388, 392
(Ct. App. 1987).
The specific violation to which Mr. Stroud admitted was,
[Mr. Stroud] was residing at the Grace House; however, he chose to move out of
safe and sober housing without permission.  [Mr. Stroud] was going to be asked to
move out as a result of his continued use and having a female in his dorm.  At this
time, I have not approved him to reside anywhere else.  On June 20, 2020, I
received notification that [Mr. Stroud] had law enforcement contact in Kootenai
County.  I contacted the sex offender registry and was informed that [Mr. Stroud]
had checked in with the registry and indicated he would be residing at the Motel
6, Room 119.  [Mr. Stroud] did not have permission to move from District 7 to
District 1.
(10/23/20 Tr., p.7, Ls.1-13.)  The State recommended that Mr. Stroud be continued on probation,
because “these issues are fixable, your Honor, if he transfers to District 1, which seems to be his
intention.  Notably, he did check in with the sex offense registry when moving to Kootenai
County, and he just needs to get the rest of these matters fixed.”  (10/23/20 Tr., p.9, Ls.12-17.)
Mr. Stroud also addressed the court, stating, “I was really trying out there.  I was going through a
bout of depression not being with my kids and stuff, but I do fully intend on doing what’s right in
this matter and really want to get through this the proper way and I apologize.”  (10/23/20
Tr., p.10, Ls.9-14.)
Mr. Stroud submits that the district court abused its discretion by revoking his probation
because his probation was achieving its rehabilitative objective.  As the State acknowledged,
though Mr. Stroud changed his residence without permission, he did update his address with the
sex offender registry; Mr. Stroud was clearly not trying to abscond probation or avoid
supervision because he still updated his address so that he could be found.  Further, Mr. Stroud
acknowledged his mistake, apologized, and recognized that he needed to follow through with
5
correct procedure in the future so that he could “get through this the proper way.”  (10/23/20
Tr., p.10, Ls.9-14.)
Considering that the State recommended that Mr. Stroud be continued on probation, and
that he updated his address with the sex offender registry once he moved to Kootenai County,
Mr. Stroud submits that the district court abused its discretion by revoking his probation because
probation was still achieving its rehabilitative purpose.
II.
The District Court Abused Its Discretion When It Denied Mr. Stroud’s Rule 35 Motion
An order denying a motion for reduction of a sentence under Rule 35 is reviewed for
an abuse of discretion. State v. Hillman, 143 Idaho 295, 296 (Ct. App. 2006).  If the sentence is
found to be reasonable at the time of pronouncement, the defendant must then show that it is
excessive in view of the additional information presented with the motion for reduction. Id.
In the Rule 35 motion, Mr. Stroud informed the court that his decision to move without
informing his probation officer was due to the health concerns of his ailing father.  (R., p.147.)
He also emphasized that he did update his address with the sex offender registry, was not a flight
risk, and only moved to he was in a better position to support and provide care for his father.
(R., p.147.)  Further, he had a good family support network, was highly employable, and would
make the most of any opportunity afforded to him by the court.  (R., p.148.)
At the Rule 35 hearing, Mr. Stroud expressed remorse for his probation violation and
emphasized that he had children that loved him and needed his support.  (11/6/20 Tr., p.21,
Ls.19-25.)  He stated that the COVID pandemic had been a “devastating variable” for him and
that his father “is in a pre-operation appointment to determine if he strong enough to undergo a
surgery that carries a life-threatening risk.”  (11/6/20 Tr., p.23, Ls.14-20.)  Considering this
6
information, Mr. Stroud respectfully submits that the district court abused its discretion by
denying his Rule 35 motion.
CONCLUSION
Mr. Stroud respectfully requests that the order revoking his probation be reversed and his
case remanded for further proceedings.  Alternatively, he requests that this Court reduce his
sentence as it deems appropriate.
DATED this 18th day of May, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 18th day of May, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


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Tullett v. Pearce  Respondent\u27s Brief Dckt. 48455

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7-21-2021 
State v. Howell Appellant's Brief Dckt. 48459 
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IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48459-2020
Plaintiff-Respondent, )
) BINGHAM COUNTY NO. CR06-19-4544
v. )
)
KADEN A. HOWELL, ) APPELLANT'S BRIEF
)
Defendant-Appellant. )
______________________________)
________________________
BRIEF OF APPELLANT
________________________
APPEAL FROM THE DISTRICT COURT OF THE SEVENTH JUDICIAL
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE
COUNTY OF BINGHAM
________________________
HONORABLE DARREN B. SIMPSON
District Judge
________________________
ERIC D. FREDERICKSEN KENNETH K. JORGENSEN
State Appellate Public Defender Deputy Attorney General
I.S.B. #6555 Criminal Law Division
P.O. Box 83720
SALLY J. COOLEY Boise, Idaho 83720-0010
Deputy State Appellate Public Defender (208) 334-4534
I.S.B. #7353
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
ATTORNEYS FOR ATTORNEY FOR
DEFENDANT-APPELLANT PLAINTIFF-RESPONDENT
Electronically Filed
7/21/2021 1:39 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
i
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ...................................................................................................... ii
STATEMENT OF THE CASE ................................................................................................... 1
Nature of the Case ........................................................................................................... 1
Statement of the Facts and
Course of Proceedings ..................................................................................................... 1
ISSUE PRESENTED ON APPEAL ............................................................................................ 3
ARGUMENT .............................................................................................................................. 4
 The District Court Abused Its Discretion By Ordering Mr. Howell
 To Pay $29,583.63 In Restitution .......................................................................................... 4
A. Introduction ..................................................................................................................... 4
B. Standard Of Review......................................................................................................... 4
C. The District Court Abused Its Discretion By Ordering Mr. Howell To
  Pay Restitution In The Amount Of $29,583.63 ................................................................ 5
CONCLUSION ........................................................................................................................... 7
CERTIFICATE OF SERVICE .................................................................................................... 7
ii
TABLE OF AUTHORITIES
Cases
Lunnenborg v. My Fun Life, 163 Idaho 856 (2018) ......................................................................4
State v. Card, 146 Idaho 111 (Ct. App. 2008) ..............................................................................5
State v. Corbus, 150 Idaho 599 (2011)..................................................................................... 4, 5
State v. Hurles, 158 Idaho 569 (2015) .........................................................................................4
State v. Nienburg, 153 Idaho 491 (Ct. App. 2012) .......................................................................5
State v. Straub, 153 Idaho 882 (2013)...................................................................................... 4, 6
State v. Wisdom, 161 Idaho 916 (2017) .......................................................................................5
Statutes
I.C. § 19-5304 ......................................................................................................................... 4, 5
1
STATEMENT OF THE CASE
Nature of the Case
Kaden Howell pled guilty to one count of felony battery on certain personnel, and one
count misdemeanor resisting and obstructing.  He received a unified sentence of five years, with
two years fixed, but the district court retained jurisdiction.  On appeal, Mr. Howell contends that
the district court abused its discretion by ordering him to pay $29,585.63 in restitution.
Statement of the Facts and Course of Proceedings
On October 18, 2019, officers responded to a call advising that Kaden Howell was in
front of a residence, had been asked to leave, and refused.  (Presentence Investigation Report
(hereinafter, PSI),1 p.5.)  Mr. Howell was cited for second degree stalking.  (PSI, p.5.)  That
same day, officers returned to the residence in response to a report that Mr. Howell was sitting
outside the residence in a vehicle.  (PSI, p.5.)  Officers detained Mr. Howell.  (PSI, p.5.)  He
became combative when officers attempted to adjust the handcuffs.  (PSI, p.184.)  Mr. Howell
flailed and kicked wildly.  (PSI, p.5.)  Chief Rodney Mohler and Officer Weston Hyman suffered
cuts and bruises in their efforts to subdue Mr. Howell.  (PSI, p.5; R., p.11.)  Another officer,
Jeffrey Hintze, who was holding onto Mr. Howell’s arm, fell against the running board of a
nearby pickup truck.  (PSI, p.5.)  Officer Hintze, suffered a small laceration on his head.  (PSI,
p.5.)
Based on these facts, Mr. Howell was charged by Information with one count of felony
battery on certain law enforcement personnel, and one count of misdemeanor resisting and
obstructing.  (R., pp.22-23.)  Pursuant to a plea agreement, Mr. Howell pled guilty as charged.
1 Appellant’s use of the designation “PSI” includes the packet of documents grouped with the
electronic copy of the PSI, and the page numbers cited shall refer to the corresponding page of
the electronic file.
2
(R., pp.57-69.)  The State agreed to concur with the sentencing recommendation contained in the
PSI.2  (R., pp.60, 67.)  Pursuant to the terms of the plea agreement, Mr. Howell “agree[d] to pay
restitution to the Idaho State Insurance Fund (Claim # 201912635) in an amount yet to be
determined but estimated at $2,500 in CR06-19-4544.”  (R., p.67.)  After the plea agreement was
signed by the parties, the State filed a request for $21,447.02 in restitution to be paid to the Idaho
Worker’s Compensation Fund.  (R., pp.76-79.)
Mr. Howell was sentenced to five years, with two years fixed, but the district court
retained jurisdiction.  (R., pp.102-06.)  In the Judgment of Conviction, Order Retaining
Jurisdiction, the district court ordered Mr. Howell to pay restitution in the sum of $752.03.
(R., p.103.)  After sentencing, the State amended its motion to set restitution, seeking $29,583.63
in restitution to Idaho Workers Compensation.  (R., pp.109-17.)  The court set the matter for a
restitution hearing.  (R., pp.96-97.)
At the conclusion of the hearing, the district court orally ordered Mr. Howell to pay
restitution in the amount of $29,035.60.  (See Tr., p.28, Ls.5-11.)  Thereafter, the district court
entered a written order for Mr. Howell to pay $29,583.63 in restitution to Idaho Workers
Compensation.  (R., pp.119-20.)  Mr. Howell timely appealed from the Order of Restitution For
The Benefit of Idaho Workers Compensation.  (R., pp.125-28.)
2 Mr. Howell had several outstanding criminal cases that were resolved globally through the plea
agreement.  (R., pp.66-67.)
3
ISSUE
Did the district court abuse its discretion when it ordered Mr. Howell to pay $29,583.63 in
restitution?
4
ARGUMENT
The District Court Abused Its Discretion By Ordering Mr. Howell To Pay $29,583.63 In
Restitution
A. Introduction
Mr. Howell challenges the district court’s order requiring him to pay $29,583.63 in
restitution because that amount was not supported by substantial and competent evidence.  He
asserts that the district court abused its discretion by filing a written order requiring Mr. Howell
to pay $29,583.63, where, at the restitution hearing, the district court found $29,035.63 to be due
and owed as restitution.
B. Standard Of Review
“‘The decision regarding whether to order restitution, and in what amount, is within the
district court’s discretion,’ guided by factors in Idaho Code section 19-5304(7).” State v. Hurles,
158 Idaho 569, 573 (2015) (quoting State v. Corbus, 150 Idaho 599, 602 (2011)).  Appellate
courts use a four-part test for determining whether a district court abused its discretion:  Whether
the trial court:  (1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of
reason. Lunneborg, v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).  When
reviewing a decision to order restitution, the appellate court will defer to the district court’s
factual findings if they are supported by substantial evidence. State v. Straub, 153 Idaho 882,
886 (2013).  However, it will exercise free review over the application of the law to the facts. Id.
5
C. The District Court Abused Its Discretion By Ordering Mr. Howell To Pay Restitution In
The Amount Of $29,583.63
“Idaho’s restitution statute permits a court to order restitution for ‘any crime which
results in an economic loss to the victim.’” Corbus, 150 Idaho at 602 (quoting I.C. § 19-
5304(2)).   Restitution may be awarded for “any economic loss which the victim actually suffers”
as a result of the conduct for which the defendant has been found guilty.  I.C. § 19-5304(2);
State v. Nienburg, 153 Idaho 491, 495 (Ct. App. 2012).  Economic loss is defined by the statute
and includes “direct out-of-pocket losses or expenses, such as medical expenses resulting from
the criminal conduct.”  I.C. § 19-5304(1)(a).  In order to prove that such losses are actually
recoverable under that statute, the State must prove the out-of-pocket losses. See, e.g., State v.
Card, 146 Idaho 111, 114-15 (Ct. App. 2008) (reiterating that the amount of the economic loss
must be proved by a preponderance of the evidence).  The Idaho Supreme Court has explained
out-of-pocket losses are “consisting of or requiring an actual cash outlay,” and “actually” is
something “existing in fact or reality.” Id.
In its amended motion to set restitution, the State requested restitution in the amount of
$29,583.63.  (R., pp.109-10.)  In support of that request, the State attached documentation from
the Idaho State Insurance Fund (“ISIF”), which indicated that ISIF made payments on behalf of
Officer Hintze which totaled $28,831.60.  (R., pp.109-117.)  The attached documentation also
included a letter regarding injured worker Rodney Mohler, with an injury payment totaling
$752.03.  (R., pp.116-17.)
At the restitution hearing, the State’s witness, ISIF employee Mary McCoy, testified that
Officer Hintze’s medical expenses and lost wages totaled $29,035.60.  (Tr., p.6, L.22 – p.7, L.1.)
The State did not offer any exhibits in conjunction with Ms. McCoy’s testimony.  (See
Tr., generally.)  Officer Jeffrey Hintz testified that he had a laceration on his head and suffered a
6
torn rotator cuff and torn labrum on his right shoulder.  (Tr., p.11, Ls.9-16.)  He testified that he
went to physical therapy for two months after the shoulder surgery.  (Tr., p.15, Ls.11-20.)  He
testified that he missed two months of work, due to this injury.  (Tr., p.16, Ls.6-8.)  Officer
Hintze testified that he had previously injured his right shoulder and had surgery to repair a torn
labrum in 1994.  (Tr., p.20, L.24 – p.21, L.9.)  Officer Hintze was not directed to identify or view
any exhibits pertaining to his medical treatment or missed days of work during the restitution
hearing.  (See Tr., generally.)  The district court took judicial “notice of the plea agreement and
other pleadings filed in this matter.”  (Tr., p.26, Ls.6-7.)
After hearing testimony from two witnesses, the district court concluded:
The evidence shows that on October 18, 2019 Officer Hintze was involved in his
duties as a police officer for the city of Shelley and county of Bingham County,
State of Idaho with Mr. Howell.  That a scuffle ensued and that as a result Officer
Hintze suffered injuries to his head and to his shoulder.
He may have had surgery in 1994 on his shoulder, but that doesn’t mean that
injury that he sustained in this incident is not the result of Mr. Howell's actions.
Ms. McCoy from the State Insurance Fund indicated that they had paid out on
behalf of the City of Shelley for their employee, Officer Hintze, in the amount of
$29,035.60.
Therefore the Court finds that that amount of restitution is appropriate and will so
order.
(Tr., p.27, L.19 – p.28, L.11.)
However, two days after the conclusion of the restitution hearing, the district court
entered a written order requiring Mr. Howell to pay $29,583.63 in restitution to the State
Insurance Fund.  (R., pp.119-20.)  Because the amount of restitution ordered in writing is
inconsistent with the district court’s oral findings, the district court abused its discretion because
its factual findings are not supported by substantial evidence and it failed to reach its decision by
an exercise of reason. See Straub, 153 Idaho at 886 .
7
Thus, the district court abused its discretion by filing a written order requiring
Mr. Howell to pay $29,583.63, where, at the restitution hearing, the district court found
$29,035.63 to be due and owed as restitution.  Because the amount ordered on the written order
is unsupported by substantial evidence, the restitution award should remanded for the correct
amount, $29,035.63, to be entered.
CONCLUSION
Mr. Howell respectfully requests that this Court remand the restitution order in his case
with instructions to order $29,035.63 to be paid as restitution.
DATED this 21st day of July, 2021.
/s/ Sally J. Cooley
SALLY J. COOLEY
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21st day of July, 2021, I caused a true and correct copy
of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
SJC/eas


University of Idaho

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