                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 42357

STATE OF IDAHO,                         )
                                        )
                                                             Boise, February 2015 Term
    Plaintiff-Respondent,               )
                                        )
                                                             2015 Opinion No. 34
v.                                      )
                                        )
                                                             Filed: April 1, 2015
KENNY CARL STRUHS,                      )
                                        )
                                                             Stephen W. Kenyon, Clerk
    Defendant-Appellant.                )
_______________________________________ )

       Appeal from the District Court of the Seventh Judicial District of the State of
       Idaho, Bingham County. Hon. Darren B. Simpson, District Judge.

       The judgment of the district court is affirmed.

       Sara B. Thomas, State Appellate Public Defender, Boise, for appellant.

       Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent.
                                ____________________


J. JONES, Justice.
       Kenny Carl Struhs pleaded guilty to vehicular manslaughter, was sentenced to a unified
term of fifteen years in prison with ten years fixed, and was ordered to pay restitution to the
victim’s widow, including an amount compensating her for health insurance premiums she paid
for coverage between the time of the accident and the time of Struhs’ sentencing. On appeal,
Struhs challenged the sentence as excessively harsh and the award of restitution for insurance
premiums as unauthorized under Idaho Code section 19-5304. We affirm.
                                      I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       On August 2, 2012, Kenny Carl Struhs was invited to the home of a friend for a barbecue
in Blackfoot. Struhs had five or six beers before arriving at the barbecue and had five to seven
more once there. Later, Struhs was involved in a confrontation and left in his vehicle. He entered
an intersection without observing a stop sign and collided with a motorcycle driven by Brent
Hansen, with Brent’s six-year-old daughter, Abigail Hansen, a passenger. Struhs left the scene of
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the accident and nearly struck two pedestrians before he attempted a U-turn at a dead end and
lost control of his vehicle. While Abigail suffered relatively minor injuries, Brent did not
survive. A blood test determined that Struhs had a blood alcohol concentration of .157.
           Struhs was charged with two felonies—leaving the scene of an accident resulting in
injury or death under Idaho Code section 18-8007 and vehicular manslaughter, alternately, under
Idaho Code section 18-4006(3)(a) or (b). After initially pleading not guilty to both charges,
Struhs later reached an agreement with the State pursuant to which he pleaded guilty to a
violation of Idaho Code section 18-4006(3)(b), vehicular manslaughter resulting from driving
under the influence of alcohol, drugs, or any other intoxicating substance. In exchange, the State
agreed to dismiss the charge of leaving the scene of an accident resulting in injury or death. The
agreement did not address sentencing. On March 12, 2013, the district court sentenced Struhs to
a unified term of fifteen years in prison with ten years fixed. The district court entered judgment
and dismissed the charge of leaving the scene of an accident.
           The State sought restitution in the amount of $53,406.04 on behalf of Brent’s widow,
Emilie Hansen, pursuant to Idaho Code section 19-5304. That amount included $761.85 for
premiums paid by Emilie for health insurance coverage for December 2012 to February 2013.
The State argued that restitution for the premiums was appropriate because Emilie lost her
coverage under the plan sponsored by Brent’s employer and was forced to purchase a more
expensive individual plan. Struhs objected to various elements of the State’s restitution request,
including the amount to compensate Emilie for insurance premiums. Following a hearing, the
district court ordered Struhs to pay restitution in the amount of $51,651.54, including medical
expenses, a portion of the requested funeral expenses, lost wages, and $761.85 for Emilie’s
insurance premiums.
           Struhs timely appealed and the case was initially assigned to the Court of Appeals. He
made two arguments there. First, he argued that the district court abused its discretion when it
ordered restitution for Emilie’s insurance premiums. 1 Second, he argued that the district court
abused its discretion by imposing an excessively harsh sentence in light of his remorse and
substance abuse problem. The Court of Appeals held that the district court did not abuse its
discretion in sentencing Struhs, but improperly ordered restitution for Emilie’s insurance


1
    Struhs did not argue that any other portion of the district court’s restitution order was improper.
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premiums. The State filed a petition for review, which this Court granted.
                                               II.
                                       ISSUES ON APPEAL
        1. Whether the district court abused its discretion by ordering restitution for premiums
           paid by the decedent’s widow for health insurance coverage between the date of the
           crime and the date of sentencing.
        2. Whether the district court abused its discretion by sentencing Struhs to a unified term
           of fifteen years in prison with ten years fixed.
                                               III.
                                           DISCUSSION
    A. Standard of Review
         “The decision regarding whether to order restitution, and in what amount, is within the
district court’s discretion and is guided by consideration of the factors set forth in Idaho Code
section 19-5304(7).” State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401 (2011). “The issue
of causation in restitution cases is a question of fact to be decided by the trial court. The district
court’s factual findings with regard to restitution will not be disturbed on appeal if supported by
substantial evidence.” Id. (internal citations omitted). Likewise, “[s]entencing is within the
discretion of the trial court, and a defendant has the burden of showing a clear abuse of that
discretion.” State v. Delin, 102 Idaho 151, 152, 627 P.2d 330, 331 (1981).
        In evaluating a claim that the district court abused its discretion, this Court asks,
    first, whether the trial court correctly perceived the issue as one of discretion; second,
    whether the trial court acted within the outer boundaries of its discretion and consistently
    with the legal standards applicable to the specific choices available to it; and finally,
    whether the trial court reached its decision by an exercise of reason.
State v. Windom, 150 Idaho 873, 875, 253 P.3d 310, 312 (2011).
        “Upon granting a petition for review of a Court of Appeals’ decision, this Court gives
serious consideration to the views of the Court of Appeals, but directly reviews the decision of
the trial court.” Id.
    B. The district court properly awarded restitution for Emilie’s insurance premiums.
        The district court recognized that “[t]he decision whether to order restitution is
discretionary.” It also clearly articulated its reasons for ordering restitution as it did. Its order
included $761.85 paid by Emilie for premiums for health insurance covering three months
between the accident and Struhs’ sentencing. On appeal, Struhs argues that Idaho Code section
19-5304 does not permit restitution for Emilie’s insurance premiums.
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        Idaho Code section 19-5304(2) authorizes a court to “order a defendant found guilty of
any crime which results in economic loss to the victim to make restitution to the victim.” Such
restitution “shall be ordered for any economic loss which the victim actually suffers.” I.C. § 19-
5304(2). In homicide cases, “the immediate family of the actual victim” is also a victim for
purposes of restitution. I.C. § 19-5304(1)(e)(i). “Manslaughter is included in the category of
homicide cases.” State v. Straub, 153 Idaho 882, 888, 292 P.3d 273, 279 (2013). “Economic
loss” is defined to include, “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. § 5304(1)(a). “The phrase ‘out-of-
pocket’ is defined as ‘consisting of or requiring an actual cash outlay.’” Straub, 153 Idaho at
889, 292 P.3d at 280 (quoting Webster’s Third New International Dictionary, Unabridged
Edition (1971)). The district court concluded that the amount Emilie expended to acquire health
insurance was an “out-of-pocket expense [that] directly resulted from Struhs’ criminal conduct.”
        In support of his claim that the district court abused its discretion by awarding restitution
for Emilie’s insurance premiums, Struhs relies exclusively on this Court’s opinion in Straub.
Straub pleaded guilty to vehicular manslaughter and was ordered to pay restitution to the
decedent’s widow, including $530,697.20 for future lost wages and future medical insurance
premiums. Id. at 885, 292 P.3d at 276. Straub argued that the award was improper as to that
amount because Idaho Code section 19-5304 does not authorize restitution for prospective
economic losses. Id. at 888, 292 P.3d at 279. This Court agreed. As to the future wages, the
Court held that restitution awards for lost wages “are limited to the quantifiable out-of-pocket
losses at the time of the restitution award,” and that the loss of possible, future wages does not
constitute an “actually suffered” economic loss at the time of the award. 2 Id. at 890, 292 P.3d at
281. As to the insurance premiums, the Court stated:
    On the award of future medical insurance premiums, Straub specifically disputes the
    $30,697.20 for “anticipated insurance premiums.” According to the district court, these
    future premiums are not based on speculation. The premiums are for continuation of the
    COBRA health coverage program . . . purchased after the accident but before the

2
  In Straub, the restitution award was made four days after the sentencing hearing. 153 Idaho at 885, 292 P.3d at
276. However, the hearing and decision on restitution preceded the sentencing hearing. Even where the order
awarding restitution is entered after sentencing, the cut-off point for computation of restitution is the date of
sentencing.
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   restitution hearing. However, there is a distinction between medical expenses and
   medical insurance. Medical expenses are expressly included in the definition for
   economic loss in I.C. § 19-5304(1)(a) if they are a direct result of the criminal conduct. In
   contrast, the acquisition of medical insurance does not directly correlate as a direct
   consequence of the criminal conduct. Although it is foreseeable that the death of the lone
   family breadwinner would leave the family without health insurance, foreseeability does
   not equal a “direct” result.
Id. According to Struhs, Straub stands for the proposition that restitution for expenses incurred to
replace a health insurance plan lost as a result of criminal conduct is categorically improper
under Idaho Code section 19-5304 because such an expense is not a direct result of that conduct.
       The State argues that the Straub holding on restitution for insurance hinged on the
prospective nature of those premiums, and not the mere fact that insurance premiums were at
issue. The restitution award in Straub compensated the victim both for premiums paid between
the date of the crime and the date of sentencing, and for prospective premiums for three
additional years. Id. at 887–88, 292 P.3d at 278–79. Straub challenged only the portion of the
award for prospective insurance premiums. Id. at 888, 292 P.3d at 279. Thus, the Court in Straub
did not address the question whether restitution is available for insurance premiums covering the
period between the date of the crime and the date of sentencing. The State argues that the
contributions Brent’s employer formerly made towards Emilie’s insurance coverage are, like lost
wages and unlike the prospective insurance premiums at issue in Straub, a quantifiable, direct,
out-of-pocket loss at the time of sentencing.
       In Straub, this Court determined that the future insurance premiums were not a “direct
consequence of [Straub’s] criminal conduct.” Id. at 890, 292 P.3d at 281. In doing so, the Court
emphasized that the premiums were prospective and expressed concern that “[i]f we allow all
foreseeable damages to be clothed in criminal restitution, we will draw to a standstill an already
overburdened criminal court process.” Id. “Prosecutors and criminal defense attorneys would
then have to engage in civil discovery and trials of a civil nature on top of already complex
criminal procedure and trials.” Id. Where the State seeks an award of restitution for future losses,
this concern is warranted. Adjudicating the propriety of such an award would involve significant
uncertainty regarding how far in the future the victim should be awarded restitution for certain
costs and whether the defendant directly caused them. In the case of future insurance premiums,
for instance, it may well be unclear whether, when, and how much the victim’s expenses
associated with insurance premiums might have increased even if the criminal conduct had not
                                                 5
occurred and whether, when, and how much those expenses might yet decrease despite that
conduct. Idaho Code section 19-5304 pre-empts those difficult questions by providing that
“[r]estitution shall be ordered for any economic loss which the victim actually suffers.”
“Webster’s Dictionary defines the word ‘actually’ as something ‘existing in fact or reality’ and in
contrast with the words ‘potential and possible.’” Straub, 153 Idaho at 889, 292 P.3d at 280
(quoting Webster’s Third New International Dictionary, Unabridged Edition (1971)). Like future
wages, premiums for future insurance coverage do not constitute a loss the victim has actually
suffered at the time of sentencing. As this Court concluded, the district court erred in Straub by
awarding “speculative future wages and other expenses rather than direct out-of-pocket expenses
actually suffered,” id. at 890, 292 P.3d at 281, not simply by awarding restitution for insurance
premiums.
         The Court’s reasoning in Straub does not suggest that Idaho Code section 19-5304
categorically forbids restitution for medical insurance, but rather that such restitution must be
limited to actual losses incurred as of the time of sentencing. Brent had medical insurance
coverage that was paid for by his employer. Had he survived the accident, the employer would
have paid this fringe benefit as part of his compensation package for the period of time at issue
here. Because Brent did not survive, Emilie made an out-of-pocket expenditure to replace a
financial benefit that was lost as a direct result of Struhs’ criminal conduct. Because the State is
requesting restitution for premiums covering only the period between the crime and Struhs’
sentencing, the district court could properly have awarded her restitution for that loss. 3
    C. Struhs has not shown that the district court abused its discretion by sentencing him
       to a unified term of fifteen years in prison with ten years fixed.
         Struhs argues that the district court abused its discretion when it sentenced him to a
unified term of fifteen years in prison with ten years fixed.
         The standards governing this Court’s review of a trial court’s sentencing decisions are
well settled.
    Whenever a sentence is within the statutory limits, the defendant bears the burden of


3
  The district court awarded Emilie the full $761.85 she paid for medical insurance coverage. The record indicates
that Brent’s employer would have paid a lesser amount than Emilie paid for his coverage under the company plan
during the period in question. Group plans generally are less expensive than individual plans. Nevertheless, Emilie
was out of pocket the amount awarded by the district court and there is nothing in the record to indicate that this was
some sort of Cadillac plan or otherwise unreasonable. But for Brent’s death, she would not have incurred any
expense for medical coverage.
                                                          6
   demonstrating the sentence is an abuse of discretion. A sentence is reasonable if it
   appears necessary to achieve the primary objectives of protecting society or the related
   sentencing goals of deterrence, rehabilitation, or retribution. A sentence is excessive if it
   is unreasonable under any rational view of the facts. For the purpose of review, this Court
   considers the fixed term of confinement as the sentence imposed. This Court will
   independently review the record and consider the nature of the offense, character of the
   offender, and the public’s interest in determining whether a sentence is excessive.
State v. Hansen, 138 Idaho 791, 797, 69 P.3d 1052, 1058 (2003) (internal citations omitted). “A
sentence need not serve all sentencing goals; one may be sufficient.” State v. Sheahan, 139 Idaho
267, 285, 77 P.3d 956, 974 (2003).
       A violation of Idaho Code section 18-4006(3)(b) is punishable “by a fine of not more
than fifteen thousand dollars ($15,000), or by a sentence to the custody of the state board of
correction not exceeding fifteen (15) years, or by both such fine and imprisonment.” I.C. § 18-
4007(3)(b). Because Struhs was sentenced to a term of fifteen years in prison with ten years
fixed and that sentence is within the statutory limit, it is his burden to show that the sentence is
unreasonable under any rational view of the facts.
       The district court clearly acknowledged the discretionary nature of sentencing, explicitly
considered the sentencing objectives in determining an appropriate sentence, and identified the
protection of society as the goal primarily motivating its sentencing choice. The court noted that
Struhs had an extensive history of misdemeanor offenses involving alcohol and vehicles,
including seven convictions for driving without privileges, three open container convictions, and
convictions for failure to stop at an accident, driving with an invalid license, driving without
insurance, inattentive driving, and driving under the influence. In addition, the court noted
Struhs’ pattern of driving under the influence of alcohol. According to Struhs, he “drove
intoxicated nearly every day” in the year prior to the accident at issue here, including regular
trips from North Dakota to Blackfoot, Idaho, during which Struhs would consume as many as
thirty-six beers. Finally, the court expressed doubt whether Struhs adequately recognized the
severity of his problem with alcohol and would commit to treatment. A substance abuse report
commissioned by the court states that Struhs “displays a desire to participate in treatment at this
time,” but also that the desire is likely a result of “the serious consequences [Struhs] is facing.”
The same report notes that Struhs’ “behavior prior to committing his current offense displayed a
non-acceptance or resistance to [the] severity of his substance problem despite possible serious
adverse consequences or effects on himself or others,” and the presentence report states that it
                                                 7
does “not appear that [Struhs] fully grasped his current relapse potential along with the
seriousness of his substance abuse.” Given these facts, the district court reasonably concluded
that Struhs presents a considerable risk to the public.
       Struhs argues that the district court failed to properly consider his remorse and
alcoholism as mitigating factors. In each case, Struhs is incorrect. The district court discussed
Struhs’ remorse, noting that while Struhs expressed sorrow during the sentencing hearing, the
presentence report indicated that Struhs showed “very little remorse” regarding the accident.
Struhs argues that he has consistently taken responsibility for the accident, but he does not deny
that he left the scene. According to Struhs, he did so because, while he “hear[d] a loud noise,” he
did not then realize that he had been involved in an accident. According to the officer who first
interviewed Struhs on the scene, however, Struhs stated that “he got hit by someone in the
intersection.” Struhs apparently knew as of then, at least, that he had been involved in a collision.
The district court also discussed Struhs’ alcoholism as a potentially mitigating factor. The court
noted that Struhs has “a severe substance abuse problem,” likely instigated by a difficult
childhood. In sentencing Struhs to ten, and not fifteen, years fixed, the district court judge noted
his desire to supervise Struhs for a period of five years following Struhs’ release and his hope
that the prison environment would ameliorate Struhs’ substance abuse problem.
       The district court considered the need to protect the public, the devastating consequences
for Emilie, now a widow with five young children, and Struhs’ alcoholism and need for
treatment. “The weight to be given to [his] expressions of remorse and his substance abuse was
for the district court to determine.” State v. Baker, 136 Idaho 576, 579, 38 P.3d 614, 617 (2001)
(holding that a fixed sentence of ten years in prison for vehicular manslaughter was not an abuse
of discretion, despite the defendant’s expressions of remorse and struggles with substance
abuse). Though reasonable minds might differ as to the propriety of Struhs’ sentence, “[i]n
deference to the trial judge, this Court will not substitute its view of a reasonable sentence where
reasonable minds might differ.” State v. Arthur, 145 Idaho 219, 224, 177 P.3d 966, 971 (2008).
                                              IV.
                                          CONCLUSION
       The judgment of the district court is affirmed.


       Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.

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