                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 39577

STATE OF IDAHO,                                    )     2013 Unpublished Opinion No. 620
                                                   )
          Plaintiff-Respondent,                    )     Filed: August 8, 2013
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
SAIYOTH TOM CHONGPHAISANE,                         )     THIS IS AN UNPUBLISHED
                                                   )     OPINION AND SHALL NOT
          Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                   )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Cheri C. Copsey, District Judge.

          Order awarding restitution, affirmed.

          Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
          Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

          Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
          Attorney General, Boise, for respondent. John C. McKinney argued.
                    ________________________________________________
GUTIERREZ, Chief Judge
          Saiyoth Tom Chongphaisane appeals from the restitution order imposed following his
judgment of conviction for possession of methamphetamine. For the reasons set forth below, we
affirm.
                                                  I.
                                    FACTS AND PROCEDURE
          After police executed a search warrant at a residence where Chongphaisane was found
with drugs, he was charged with one felony count of possession of a controlled substance
(methamphetamine), Idaho Code § 37-2732(c); one misdemeanor count of possession of a
controlled substance, I.C. § 37-2732(c); and one misdemeanor count of possession of drug
paraphernalia, I.C. § 37-2734A. Pursuant to a plea agreement, Chongphaisane pled guilty to the
felony charge in exchange for dismissal of the misdemeanors, a specific sentencing
recommendation from the State, and the State’s agreement not to file a sentencing enhancement.



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The State retained the right to request restitution. Prior to sentencing, the State was released
from the plea agreement’s restrictions after new charges were filed against Chongphaisane.
       At the sentencing hearing, the State submitted its initial restitution request of $3018.21
for the costs of the investigation, to be paid to the Idaho State Crime Lab and the Boise Police
Department (BPD).      Chongphaisane objected to the amount requested by the BPD, which
comprised all but $100 of the restitution request and included requests for reimbursement for
hours spent by nine BPD employees on the case.               At the restitution hearing, held in
February 2012, two BPD employees, Officer Steve Keely and Technician Laura Weddle, 1
testified in support of the State’s request.    Officer Keely testified he spent approximately
twenty-five hours investigating Chongphaisane’s criminal activity and that his rate of pay was
approximately $38 an hour (which Weddle later testified did not include benefits). The State
introduced Exhibit 1 through Weddle, who prepared the document: it listed each BPD employee
who worked on the investigation, the number of hours they had done so, and the total restitution
amount requested by the BPD. It did not list the employees’ individual rates of pay. Weddle
testified she calculated the restitution amount after collecting the number of hours worked on the
investigation from the participants; identifying which hours qualified as overtime; and then,
requesting the employees’ “rate of pay and benefits” applicable to the time the search took
place. She then multiplied the hours spent on the investigation by the employees’ applicable rate
of pay, which, for the purposes of the restitution request, included the cost of benefits received
by the employees. If the hours worked were considered overtime, the calculation was increased
to time and a half. Weddle testified her rate of pay, including benefits, was $20 an hour. Neither
she nor Officer Keely testified to the rate of pay for the other employees listed in the restitution
request. The State then rested.
       In argument at the conclusion of the restitution hearing, Chongphaisane pointed out that
the State provided no evidence of the rate of pay for any of the BPD employees besides Officer
Keely and Weddle; therefore, he argued, there was insufficient evidence to award restitution for
those employees. The State agreed it did not elicit testimony from Weddle concerning the
employees’ specific rate of pay, but pointed out it did ask Weddle how she calculated the
amounts requested. The State asked that, if the district court did not believe the evidence was

1
       Weddle testified she assisted with crime scene investigation responsibilities and was
responsible for compiling the time sheets used to request restitution for investigations.

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sufficient, it be allowed to reopen its case. Without discussion, the court allowed the case to be
reopened, and the State again called Weddle, who testified she did not have the officers’ rates of
pay with her, but approximated the rates based on a comparison with Officer Keely’s rate of pay.
The district court took the matter under advisement.
       Several days after the hearing, the State submitted an affidavit from Weddle wherein she
included the rates of pay (including benefits) for the remaining employees. Chongphaisane
objected to the court’s consideration of the affidavit on the grounds that it was untimely because
the State had rested its case and because it violated his constitutional rights to confront an
adverse witness. Although Chongphaisane indicated he did not want a hearing, the district court
scheduled a hearing to allow Chongphaisane to cross-examine Weddle regarding her statements
in the affidavit. The court also indicated it would include the time Weddle spent at the hearing in
the restitution award.     Chongphaisane strenuously objected. The hearing was held, but
Chongphaisane declined to question Weddle.             On March 26, Weddle submitted a second
affidavit listing the time spent by Officer Keely and herself at the two restitution hearings, their
rate of pay, and the resulting additional amount of restitution requested.
       The district court entered a written order of restitution, indicating, in relevant part, it was
within its discretion to reopen the matter and take additional evidence, even on its own motion,
and that benefits could be included in the restitution amount. It awarded $2,918.21 to the BPD
and $100 to the Drug Enforcement Donation Account. 2 Chongphaisane timely appealed.
                                                 II.
                                            ANALYSIS
A.     Inclusion of Benefits
       Chongphaisane contends the district court erred by including benefits as a part of law
enforcement personnel’s hourly pay rate in the restitution award. He argues the restitution
amount should have been limited to the employees’ “regular” salaries. Courts of criminal
jurisdiction generally have no authority to order restitution in a criminal case beyond that
authority conferred by statute. See, e.g., State v. Gonzales, 144 Idaho 775, 777, 171 P.3d 266,
268 (Ct. App. 2007); State v. Cheeney, 144 Idaho 294, 296, 160 P.3d 451, 453 (Ct. App. 2007).
Where statutory authority exists, the decision whether to order restitution is a matter of trial court

2
       The district court apparently did not include restitution for the time spent at the restitution
hearings by Officer Keely and Weddle.

                                                  3
discretion, but a restitution order made without a statutory basis is not a permissible exercise of
judicial discretion. State v. Aubert, 119 Idaho 868, 869, 811 P.2d 44, 45 (Ct. App. 1991),
overruled on other grounds by State v. Schultz, 148 Idaho 884, 231 P.3d 529 (Ct. App. 2008).
This Court exercises free review over the application and construction of statutes. State v. Reyes,
139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is
plain and unambiguous, this Court must give effect to the statute as written, without engaging in
statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v.
Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be
given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If
the language is clear and unambiguous, there is no occasion for the court to resort to legislative
history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67.
       The statute under which restitution was ordered in this case, Idaho Code § 37-2732(k),
provides in relevant part:
               Upon [a qualifying conviction], the court may order restitution for costs
       incurred by law enforcement agencies in investigating the violation. . . . Costs
       shall include, but not be limited to, those incurred for the purchase of evidence,
       travel and per diem for law enforcement officers and witnesses throughout the
       course of the investigation, hearings and trials, and any other investigative or
       prosecution expenses actually incurred, including regular salaries of employees.

       Chongphaisane argues the cost of benefits cannot be included in the employees’ rate of
pay because the statute mentions only “regular salaries” and, therefore, it “inherently limit[s] the
types of pay that [can] be recouped under this code section because ‘[i]t is a universally
recognized rule of construction that, where a constitution or statute specifies certain things, the
designation of such things excludes all others.’” (Citations omitted.) He also asserts that the
benefits the State requested in this case are accrued by the employee independent from the hours
the employee works and, thus, were not incurred as a result of the investigation into the specific
violation by Chongphaisane and cannot be included in a restitution award.
       The district court rejected this argument, noting Chongphaisane did not cite any legal
basis for his contention that the cost of benefits should be excluded because they “would have
been paid anyway.” The court noted the employees’ salaries would also have been “paid
anyway” regardless of the investigation and, thus, this reasoning is not a valid basis to exclude it
from restitution. The court found the statute is “comprehensive and salaries include benefits,”



                                                 4
only limiting the court’s discretion to costs incurred during the course of the investigation and
related proceedings.
       Chongphaisane’s argument--that, based on statutory rules of construction, benefits are
necessarily excluded because the statute only mentions “regular salaries”--fails to account for a
principle underlying our interpretation of statutes: if, based on its plain language, the statute is
not ambiguous, this Court does not engage in statutory construction, but simply follows the law
as written. State v. Straub, 153 Idaho 882, 888, 292 P.3d 273, 279 (2013). Chongphaisane does
not argue the statute is ambiguous, and we do not believe that it is. Section 37-2732(k) clearly
allows for restitution for the “costs incurred by law enforcement agencies in investigating the
violation” and indicates several examples of “costs,” including “regular salaries,” but also states
the list is not exhaustive by noting that recoverable costs “shall include, but not be limited to” the
enumerated costs. (Emphasis added.) Thus, the plain language of the statute allows for recovery
of the costs of investigation even if they are not specifically enumerated in the statute.
       This reading of the statute is consistent with our Supreme Court’s interpretation of the
general criminal restitution statute, Idaho Code § 19-5304, which provides for restitution for any
actual economic loss resulting from the defendant’s criminal conduct:
       ‘[E]conomic loss’ includes, but is not limited to, the value of property taken,
       destroyed, broken, or otherwise harmed, lost wages, and direct out-of-pocket
       losses or expenses, such as medical expenses resulting from the criminal conduct,
       but does not include less tangible damage such as pain and suffering, wrongful
       death or emotional distress.[3]
(Emphasis added.) In Straub, 153 Idaho at 888-89, 292 P.3d at 279-80, the defendant pled guilty
to vehicular manslaughter and was ordered, under section 19-5304, to pay the decedent’s wife
the decedent’s future lost earnings and future medical insurance premiums. On appeal, the
defendant argued those damages were not authorized by section 19-5304 because they fell
“squarely in the realm of wrongful death damages” and the recovery of such damages in a
criminal restitution proceeding is expressly precluded by the statute. The State argued the statute
does not categorically bar the recovery of restitution for any damages that would be recoverable


3
       The Supreme Court has noted that Idaho Code § 37-2732(k) “is short on specific
guidance regarding the nature of a restitution award or the procedure to obtain such an award”
and, therefore, it has looked to the general restitution statute, Idaho Code § 19-5304, for
“guidance.” State v. Gomez, 153 Idaho 253, 258, 281 P.3d 90, 95 (2012).


                                                  5
in a wrongful death suit. The Court found the statute was not ambiguous and agreed that a plain
reading of the statute supported the State’s argument.         Specifically, the Court noted that
subsection (1)(a) of section 19-5304 contains the phrase “includes, but is not limited to,” and
when taken together with the provision in subsection (2) of section 19-5304, which allows
restitution for “any economic loss which the victim actually suffers,” the statute would allow for
restitution of lost economic support if it is a tangible out-of-pocket loss. Straub, 153 Idaho at
889, 292 P.3d at 280. 4 See also People v. Williams, 108 Cal. Rptr. 3d 772, 775 (Cal. Ct. App.
2010) (stating, without engaging in statutory construction, that where a restitution statute allows
for the recovery of “economic loss” and uses the language “including, but not limited to” before
enumerating eleven categories of loss that a victim can recover, it “strongly indicates that the
categories listed in the statute were not intended to be exclusive”).
       Given that the plain language of section 37-2732(k) is not ambiguous, we will not engage
in the statutory construction Chongphaisane urges automatically excludes benefits in a restitution
award. Because the text of the statute clearly allows for recovery outside the enumerated
categories, we turn to Chongphaisane’s second argument--that benefits do not qualify as “costs
incurred by law enforcement agencies in investigating the violation” such that they may be
included in a restitution award under this statute because BPD employees receive the benefits
“regardless of which case they investigate at a particular time or how long they work on that
investigation.”   The BPD’s loss in this regard is not caused by Chongphaisane’s criminal
conduct, he argues, because the “State will suffer that loss regardless of who or what the officer
investigates or how long he investigates.”
       Chongphaisane’s argument is based on Weddle’s testimony at the restitution hearing:
       [Defense counsel]:      So $42 an hour for Officer Keely includes all of the
                               benefits?
       [Weddle]:               Yes, that’s correct.
       [Defense counsel]:      And those benefits are made to him regardless of exactly
                               who investigates or what he investigates; correct?
       [Weddle]:               True.
       [Defense counsel]:      And his benefits are paid to him regardless whether he
                               works overtime or not; correct?

4
        Irrelevant to the issue we address here, the Straub Court ultimately concluded the
evidence regarding lost future wages was speculative, rather than an actual economic loss, and
barred restitution for lost future wages. State v. Straub, 153 Idaho 882, 890, 292 P.3d 273, 281
(2013).

                                                  6
       [Weddle]:              True.
       [Defense counsel]:     And that would be true of you as well; right?
       [Weddle]:              Yes.

       As the district court pointed out, the defect in Chongphaisane’s argument is that the same
is true in regard to salaries paid to BPD employees. Regardless of whether the employees were
investigating Chongphaisane’s case, or another case, the employees would receive their salary
and benefits. Thus, benefits are not any more divorced from the actual investigation in this case
than salaries. Mindful of this consideration, and the policy underlying the general criminal
restitution statute that favors full compensation to crime victims who suffer economic loss, see
State v. Richmond, 137 Idaho 35, 38, 43 P.3d 794, 797 (Ct. App. 2002), we do not think it is
appropriate to distinguish the cost of benefits conferred from the salaries paid to employees when
calculating restitution pursuant to section 37-2732(k). Accord In re Johnny M., 123 Cal. Rptr. 2d
316, 320 (Cal. Ct. App. 2002) (holding that restitution ordered paid to a school the defendant
vandalized for labor costs, including benefits, of salaried employees who repaired the damage
was appropriate where the school was deprived of the employees’ work product during the time
spent effecting repairs). Accordingly, the district court did not err in including benefits in the
restitution award.
B.     Sufficiency of the Evidence
       Chongphaisane also contends the State failed to present sufficient evidence to support the
restitution award. Specifically, he argues the State only properly presented evidence of the hours
worked and the rate of pay for Officer Keely and Weddle, but even that evidence was
speculative because it was only an approximation. He also argues there was no evidence
properly presented as to the rate of pay for the remaining employees because the district court
abused its discretion in reopening the case at the conclusion of the hearing to allow the State to
recall Weddle and to submit two affidavits from Weddle, which included the rate of pay for each
employee. We need not address whether the district court erred in reopening the case and
allowing the State to present additional evidence because, assuming the district court did err in
doing so, even without this evidence, there was sufficient evidence to support the restitution
award as to all employees.
       The trial court must base the amount of restitution to be awarded upon the preponderance
of evidence submitted to the court by the prosecutor, defendant, victim, or presentence



                                                7
investigator. State v. Smith, 144 Idaho 687, 695, 169 P.3d 275, 283 (Ct. App. 2007). See also
I.C. § 19-5304(6). The appropriate amount of restitution is a question of fact for the trial court,
whose findings will not be disturbed if supported by substantial evidence. State v. Taie, 138
Idaho 878, 879, 71 P.3d 477, 478 (Ct. App. 2003); State v. Hamilton, 129 Idaho 938, 943, 935
P.2d 201, 206 (Ct. App. 1997). Substantial evidence is such relevant evidence as a reasonable
mind might accept to support a conclusion. Kinney v. Tupperware Co., 117 Idaho 765, 769, 792
P.2d 330, 334 (1990).
        The crux of Chongphaisane’s argument on appeal is that the State did not present
competent evidence of any of the employees’ rate of pay, either because, in regard to Officer
Keely and Weddle, the evidence presented was too speculative or because, in regard to the
remaining employees, no evidence was presented of their rate of pay until after the case was
improperly reopened. However, we do not accept Chongphaisane’s premise that the precise rate
of pay for each employee must have been admitted into evidence in order for there to be
sufficient evidence to support the restitution award. As mentioned above, Exhibit 1 listed each
BPD employee who worked on the investigation, the number of hours they had done so, and the
total restitution amount requested by the BPD. Although the exhibit did not list the employees’
individual rates of pay (and Weddle herself could not testify as to the specific rates off the top of
her head), Weddle testified she calculated the restitution amounts after collecting the hours
worked on the investigation, identifying which hours qualified as overtime, and multiplying
those hours by the “current rate of pay [for each employee],” which she obtained from the
payroll department. Chongphaisane did not raise any doubts on cross-examination regarding the
accuracy of Weddle’s testimony or calculations. As noted above, the amount of restitution
awarded must only be supported by substantial evidence, which is such relevant evidence as a
reasonable mind might accept to support a conclusion. Kinney, 117 Idaho at 769, 792 P.2d at
334. Here, it was reasonable for the district court to accept the testimony of Officer Kelly and
Weddle, as well as Exhibit 1, as support for the amount of the BPD’s restitution request it
ultimately awarded. There is simply no requirement that every number used to arrive at a
restitution calculation be introduced into evidence--it is enough that Weddle explained the source
of her information and her process of calculating the amount to arrive at the total amount
requested. There was sufficient evidence to support the restitution award as to each employee
listed in the request.


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                                             III.
                                       CONCLUSION
        The district court did not err in including the cost of employee benefits in awarding
restitution for the investigative costs incurred by the BPD. Additionally, there was sufficient
evidence to support the amount of restitution awarded to the BPD.         The order awarding
restitution is affirmed.
        Judge LANSING and Judge MELANSON CONCUR.




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