               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 41104

STATE OF IDAHO,                                   )     2014 Unpublished Opinion No. 403
                                                  )
       Plaintiff-Respondent,                      )     Filed: March 6, 2014
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
E.J. WENDELL BOSLEY,                              )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Richard S. Christensen, District Judge.

       Order of restitution, affirmed.

       John M. Adams, Kootenai County Public Defender; Jay Logsdon, Deputy Public
       Defender, Coeur d’Alene, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       E.J. Wendell Bosley appeals from the district court’s order of restitution entered upon his
plea of guilty to disturbing the peace. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       The following facts were elicited at a preliminary hearing and are disputed by Bosley. In
February 2012, the victim and two friends walked along a street in downtown Coeur d’Alene.
All three had been drinking. Bosley, also walking down the street, began conversing with the
three. The conversation turned to football and the victim said some negative things about a team
Bosley liked. Bosley became angry and punched the victim in the head. The victim fell to the
ground and struck her head against the pavement. One of the victim’s friends attended to her
while the other began to fight Bosley. When police arrived, one of the friends reported the
foregoing facts to officers. However, the victim indicated she had not been hit and did not want



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to press charges. The victim lacked any memory of the incident--she remembered talking about
football and then being on the sidewalk talking to officers. The following day, the victim went
to the hospital and was treated for a head injury.
        The state charged Bosley with aggravated battery. I.C. §§ 18-903(a), 18-907(a). Bosley
agreed to plead guilty to an amended charge of disturbing the peace, I.C. § 18-6409, and agreed
to pay restitution. The district court imposed a sentence of 180 days in jail. The district court
suspended 170 days and allowed Bosley to work 40 hours in the community labor program in
lieu of the remaining 10 days in jail. The state requested restitution in the amounts of $400 for
wages lost by the victim due to missed work and $2730 for nonrefundable tuition payments
made for classes the victim was unable to attend. Bosley filed a written objection and requested
a hearing with respect to the proposed $2730 for tuition.
        At the hearing, the victim testified and the state presented evidence supporting the $2730
restitution request. Bosley argued the district court should decline to award this amount because
there was no causal nexus between the injuries sustained by the victim and the crime Bosley pled
guilty to (disturbing the peace). Bosley also argued the tuition payments were an expense the
victim would have incurred regardless of whether she sustained the injury. The district court
ruled that, pursuant to the plea agreement, Bosley consented to pay the victim restitution for the
injuries to her head and the losses therefrom. The district court also found the tuition payments
to be economic losses resulting from the attack and entered a restitution order in the amounts
requested by the state. Bosley appeals.
                                                 II.
                                            ANALYSIS
        Bosley contends the district court erred by determining he consented to pay restitution for
losses not caused by his admitted criminal conduct. Specifically, Bosley contends the only
conduct he pled guilty to was “noise-making.” The state argues the terms of Bosley’s plea
agreement required him to pay restitution for economic losses the victim suffered as a result of
the attack.
A.      Economic Loss Resulting from Bosley’s Criminal Conduct
        Idaho’s restitution statute generally requires restitution orders for “any crime which
results in an economic loss to the victim,” I.C. § 19-5304(2), unless the parties consent to a
broader restitution order. See I.C. § 19-5304(9). Any restitution amount awarded under Section


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19-53011(2) must be causally related to the crime. State v. Corbus, 150 Idaho 599, 602, 249
P.3d 398, 401 (2011). The statute defines “victim” as “a person or entity, who suffers economic
loss or injury as the result of the defendant’s criminal conduct.” I.C. § 19-5304(1)(e). The term
“economic loss” includes such things as “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.” I.C. § 19-5304(1)(a). Except where the parties
have consented, a defendant cannot be required to pay restitution for damages stemming from
separate, uncharged, and unproven crimes. State v. Shafer, 144 Idaho 370, 372, 161 P.3d 689,
691 (Ct. App. 2007); State v. Richmond, 137 Idaho 35, 38, 43 P.3d 794, 797 (Ct. App. 2002).
       Here, Bosley pled guilty to disturbing the peace under I.C. § 18-6409. This statute
provides, in part:
               Every person who maliciously and willfully disturbs the peace or quiet of
       any neighborhood, family or person, by loud or unusual noise, or by tumultuous
       or offensive conduct, or by threatening, traducing, quarreling, challenging to fight
       or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent
       language within the presence or hearing of children, in a loud and boisterous
       manner, is guilty of a misdemeanor.

I.C. § 18-6409(1). The state’s amended information alleged that Bosley, “did willfully and
maliciously disturb the peace and/or quiet of [the victim] by tumultuous conduct, offensive
conduct, threatening, quarrelling, fighting and/or challenging to fight.” Therefore, fighting is
both a statutory basis for a charge of disturbing the peace and a ground alleged by the state in its
information. Bosley pled guilty to this charge and expressly agreed to pay restitution. At the
restitution hearing, the victim testified that, as a result of the incident, she hit her head and
suffered a subcranial brain aneurysm. The state did not present evidence that Bosley violated
I.C. § 18-6409 in any way except for the punch to the victim’s head. Nor did Bosley present any
evidence that indicated he violated I.C. § 18-6409 in any other manner. Therefore, Bosley’s
criminal act of disturbing the peace encompassed the punch to the victim’s head (fighting).
Thus, the district court did not err in awarding restitution for the nonrefundable tuition
payments. 1



1
        The district court did not rule on whether the head injury could have resulted from Bosley
disturbing the peace. However, where a ruling in a criminal case is correct, though based upon

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B.     Consent to Pay Restitution
       An alternative ground to affirm the order for restitution is consent. Plea agreements are
contractual in nature and generally are examined by courts in accordance with contract law
standards. State v. Jafek, 141 Idaho 71, 73, 106 P.3d 397, 399 (2005); State v. Doe, 138 Idaho
409, 410-11, 64 P.3d 335, 336-37 (Ct. App. 2003); State v. Fuhriman, 137 Idaho 741, 744, 52
P.3d 886, 889 (Ct. App. 2002). In interpreting the provisions of a contract, a court must first
determine whether those terms are ambiguous or unambiguous as the application of an
unambiguous term is a question of law while the interpretation of ambiguous language presents a
question of fact as to the parties’ intent. Doe, 138 Idaho at 410-11, 64 P.3d at 336-37. Because
the question whether a plea agreement is ambiguous is an issue of law, it is reviewed de novo.
Fuhriman, 137 Idaho at 744, 52 P.3d at 889.
       Even assuming the plea agreement here is ambiguous in that it could cover distress
caused by loud noises created by Bosley or, in the alternative, the head injury, Bosley’s argument
still fails. In interpreting an ambiguous contractual term, the fact-finder must attempt to “discern
the intent of the contracting parties, generally by considering the objective and purpose of the
provision and the circumstances surrounding the formation of the agreement.” State v. Allen,
143 Idaho 267, 272, 141 P.3d 1136, 1141 (Ct. App. 2006). If possible, ambiguous language in
plea agreements should be resolved in favor of the defendant. Fuhriman, 137 Idaho at 745, 52
P.3d at 890; State v. Cole, 135 Idaho 269, 272, 16 P.3d 945, 948 (Ct. App. 2000). On appeal,
however, we defer to a trial court’s findings of fact unless they are clearly erroneous. State v.
Hawkins, 131 Idaho 396, 400, 958 P.2d 22, 26 (Ct. App. 1998). Such findings are clearly
erroneous only if they are unsupported by substantial and competent evidence. State v. Thomas,
133 Idaho 682, 686, 991 P.2d 870, 874 (Ct. App. 1999).
       In this case, the district court found Bosley agreed to pay restitution for the head injury to
the victim. There is substantial and competent evidence to support this finding. The victim
testified at the preliminary hearing and the restitution hearing to sustaining one physical
injury--the subcranial brain aneurysm. The victim did not testify to any distress caused by loud
noises made by Bosley. Nor did Bosley testify to engaging in any conduct resulting in loud




an incorrect reason, it still may be sustained upon the proper legal theory. State v. Pierce, 107
Idaho 96, 102, 685 P.2d 837, 843 (Ct. App. 1984).

                                                 4
noises. The only alleged conduct was a punch by Bosley and a head injury sustained by the
victim. Bosley’s concession to pay $400 for lost wages also undermines his interpretation of the
plea agreement. It would be illogical for Bosley to agree to pay restitution for lost wages of the
victim if the only conduct he admitted to was making loud noises that caused the victim distress.
Additionally, Bosley did not file an affidavit indicating he harbored a contrary understanding of
the plea agreement. See Schafer, 144 Idaho at 374, 161 P.3d at 693.
        Bosley also argues the plea agreement itself demonstrates he did not intend to
compensate the victim for the head injury and resulting losses. This is because, in the plea
agreement, restitution for the victim’s lost tuition payments was crossed off and marked “subject
to hearing.” This argument lacks merit. The provision providing that Bosley pay $400 for the
victim’s lost wages is also crossed off--a provision Bosley concedes he owes restitution for.
Bosley does not explain why he would owe restitution for one crossed off provision but not the
other. In viewing the plea agreement, it appears both amounts were crossed off after the parties
agreed to have a hearing to determine the amount of restitution. Regardless, we put little weight
on these crossed-off terms. The district court’s finding that Bosley agreed to pay restitution for
the head injury to the victim and the resulting losses is supported by substantial and competent
evidence and, thus, is not clearly erroneous. 2
                                                  III.
                                          CONCLUSION
        Bosley pled guilty to conduct which resulted in a head injury to the victim. Further, even
if the conduct was not covered under I.C. § 18-6409, Bosley consented to pay restitution for the
injury to the victim’s head and the resulting losses. Accordingly, we affirm the district court’s
order of restitution.
        Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




2
        Bosley does not challenge the district court’s determination that these tuition payments
constitute economic loss resulting from the head injury and we express no opinion on the
correctness of that determination.

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