               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 43109

STATE OF IDAHO,                                  ) 2016 Opinion No. 43
                                                 )
       Plaintiff-Respondent,                     ) Filed: June 24, 2016
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
CHRISTINA ROSE WISDOM,                           )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Timothy Hansen, District Judge.

       Order for restitution, reversed.

       Nevin, Benjamin, McKay & Bartlett, LLP; Deborah Whipple, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Christina Rose Wisdom appeals from the district court’s order for restitution following
her plea of guilty to felony injury to a child. Wisdom argues that the district court abused its
discretion in ordering her to pay restitution for counseling services provided to the victim. For
the reasons set forth below, we reverse.
       Wisdom pled guilty to one count of injury to a child, I.C. § 18-1501, in connection with
allegations that her husband had sexually abused her minor daughter. Wisdom allowed her
husband access to the victim after the victim had notified Wisdom that the husband had sexually
abused her. At the sentencing hearing, the state requested that the district court order restitution
in the amount of $11,069.82 for counseling services provided to the victim. The state also
indicated that the supporting documentation substantiating the costs had been provided to



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Wisdom. Wisdom objected to the award of restitution. The district court sentenced Wisdom to a
unified term of ten years, with a minimum period of confinement of three years, and retained
jurisdiction for one year. The district court deferred ruling on the issue of restitution until
Wisdom had completed the rider.
       Following the period of retained jurisdiction, the district court suspended Wisdom’s
sentence and placed her on probation for ten years. Regarding restitution, the district court
concluded that Wisdom would be required to pay restitution in monthly installments in an
amount to be determined at a later hearing. In objecting to restitution, Wisdom stated that the
state need not prove the restitution expenses as Wisdom did not contest the incurrence of
counseling expenses or the amounts.       Instead, she argued that the state could not demonstrate
causation between her conduct and the need for counseling services provided the victim. She
also asserted that she did not have the financial ability to pay the restitution.
       At the restitution review hearing, the district court ruled that the causation requirement
for imposing restitution was met. Specifically, regarding causation the district court found:
       In this situation again, it is clear to the Court, based upon the guilty plea that
       entered in this case and the review of the presentence materials submitted, that
       under either standard, the but-for test or the substantial factor test, had it not been
       for [Wisdom’s] failure to protect her child, whether it be by removing the child
       from the home, [or] by reporting the conduct in question that resulted in the
       injuries that the child sustained, that under those circumstances the injury likely
       would not have occurred and therefore it was either a substantial factor or but for
       that conduct the injury would not have occurred.
               It is not the only cause. Clearly [the husband], by his conduct has
       significantly contributed [to] the injuries sustained by [the victim] that required
       the mental health treatment and the medication treatment as well.
               But in this situation the Court is satisfied based upon either standard,
       whether it be the but-for test or the substantial factor test, that, in fact, [Wisdom’s]
       conduct as alleged in the amended complaint in this case and as admitted to by
       her under oath when she pled guilty, was, in fact, a proximate cause of the injury
       sustained by the child that did require the medical treatment.

Additionally, the district court noted, although Wisdom’s ability to pay the restitution was in
doubt, that in and of itself did not preclude the district court from ordering restitution. Rather,
the district court found that, despite Wisdom’s present inability to make payments, it did not
appear that Wisdom would be unable to do so through the entire period of probation.
Consequently, the district court determined that restitution was appropriate under I.C. § 19-5304,

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awarded restitution in the amount of $11,069.82, and ordered that it be joint and several with the
husband.1 Wisdom appeals.
       On appeal, Wisdom argues the district court erred in ordering restitution in the absence of
substantial evidence that the victim’s need for counseling services was actually or proximately
caused by Wisdom’s failure to report or stop the husband’s sexual abuse of the victim. She
reasons that the actual cause of the victim’s need for counseling was the husband’s sexual abuse
and that, but for his illegal actions, the victim would not have required counseling. She asserts
the state only offered speculative argument to demonstrate that Wisdom’s failure to report her
husband’s sexual abuse of the victim caused the victim’s need for counseling. Citing this
Court’s decision in State v. McNeil, 158 Idaho 280, 346 P.3d 297 (Ct. App. 2014), Wisdom
argues that such argument does not constitute evidence and, thus, the state failed to meet its
burden of showing causation under the requirements of I.C. § 19-5304.
       Conversely, the state argues the husband’s sexual abuse of the victim and the necessity of
the victim’s counseling was actually and proximately caused by Wisdom’s failure to report or
stop the husband’s abuse. The state asserts the husband’s abuse of the victim continued after
Wisdom learned of it and failed to report it. Thus, the state contends that, if not for Wisdom’s
crime, the daughter would not have endured continued sexual abuse from the husband
necessitating counseling. The state reasons that, in pleading guilty, Wisdom admitted to actually
causing or permitting her daughter to suffer physical pain or mental suffering. Finally, the state
argues it was foreseeable that failing to report the sexual abuse of a person residing within the
home of the victim would result in continued abuse, which would necessitate counseling.
       Idaho Code Section 19-5304(2) authorizes a sentencing court to order a defendant to pay
restitution for economic loss to the victim of a crime.       The decision of whether to order
restitution, and in what amount, is within the discretion of a trial court, guided by consideration
of the factors set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime
victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.
App. 2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we


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       Wisdom’s husband was found guilty of multiple counts of lewd conduct with a minor
under sixteen. As part of the husband’s sentence, the district court ordered restitution in the
amount of $11,069.82, jointly and severally with Wisdom.

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will not overturn an order of restitution unless an abuse of discretion is shown. Richmond, 137
Idaho at 37, 43 P.3d at 796. When a trial court’s discretionary decision is reviewed on appeal,
the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court
correctly perceived the issue as one of discretion; (2) whether the lower court acted within the
boundaries of such discretion and consistently with any legal standards applicable to the specific
choices before it; and (3) whether the lower court reached its decision by an exercise of reason.
State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       To meet the second and third requirements of this analysis, the trial court must base the
amount of restitution upon the preponderance of evidence submitted by the prosecutor,
defendant, victim, or presentence investigator. I.C. § 19-5304(6); State v. Lombard, 149 Idaho
819, 822, 242 P.3d 189, 192 (Ct. App. 2010). Thus, the state must prove, by a preponderance of
the evidence, a causal relationship between the defendant’s criminal conduct and the damages
suffered by the victim. I.C. § 19-5304(7); State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398,
401 (2011); State v. Hill, 154 Idaho 206, 212, 296 P.3d 412, 418 (Ct. App. 2012). Causation
consists of actual cause and true proximate cause. Corbus, 150 Idaho at 602, 249 P.3d at 401;
State v. Lampien, 148 Idaho 367, 374, 223 P.3d 750, 757 (2009). Actual cause refers to whether
a particular event produced a particular consequence. Corbus, 150 Idaho at 602, 249 P.3d at
401; Lampien, 148 Idaho at 374, 223 P.3d at 757. A “but for” test of actual cause is used in
circumstances where there is only one cause or where two or more possible causes were not
acting concurrently. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223
P.3d at 757.
       Proximate cause focuses on the foreseeability of the injury, requiring us to determine
whether the injury and manner of occurrence were so highly unusual that we can say, as a matter
of law, that a reasonable person, making an inventory of the possibilities of harm that his or her
conduct might produce, would not have reasonably expected the injury to occur. Corbus, 150
Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374, 223 P.3d at 757; State v. Houser, 155
Idaho 521, 525, 314 P.3d 203, 207 (Ct. App. 2013). The causal chain linking a defendant’s
criminal conduct to the economic loss suffered by a victim may be severed by an independent act
or force constituting an intervening, superseding cause. Corbus, 150 Idaho at 602, 249 P.3d at
401; Lampien, 148 Idaho at 374, 223 P.3d at 757; Houser, 155 Idaho at 525, 314 P.3d at 207. In


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general, an intervening, superseding cause replaces the defendant’s act as the proximate cause of
the victim’s injury. Corbus, 150 Idaho at 602, 249 P.3d at 401; Lampien, 148 Idaho at 374-75,
223 P.3d at 757-58; Houser, 155 Idaho at 525, 314 P.3d at 207. However, to relieve a defendant
of criminal liability, an intervening, superseding cause must be an unforeseeable and
extraordinary occurrence. Corbus, 150 Idaho at 602-03, 249 P.3d at 401-02; Lampien, 148 Idaho
at 375, 223 P.3d at 758; Houser, 155 Idaho at 525, 314 P.3d at 207. The defendant remains
criminally liable if either the possible consequence might reasonably have been contemplated or
the defendant should have foreseen the possibility of harm of the kind that could result from his
or her act. Corbus, 150 Idaho at 602-03, 249 P.3d at 401-02; Lampien, 148 Idaho at 375, 223
P.3d at 758; Houser, 155 Idaho at 525, 314 P.3d at 207.
       The determination of the amount of restitution, which includes the issue of causation, is a
question of fact for the trial court. Corbus, 150 Idaho at 602, 249 P.3d at 401; State v. Hamilton,
129 Idaho 938, 943, 935 P.2d 201, 206 (Ct. App. 1997). The district court’s factual findings
with regard to restitution will not be disturbed on appeal if supported by substantial evidence.
Corbus, 150 Idaho at 602, 249 P.3d at 401; Lombard, 149 Idaho at 822, 242 P.3d at 192.
Substantial evidence is such relevant evidence as a reasonable mind might accept to support a
conclusion. State v. Straub, 153 Idaho 882, 885, 292 P.3d 273, 276 (2013).
       We have previously addressed a similar issue in McNeil, 158 Idaho 280, 346 P.3d 297.
In McNeil, the defendant was convicted of voluntary manslaughter and, as part of his sentence,
was ordered to pay restitution for the victim’s father’s counseling in addition to other expenses.
McNeil objected, arguing that the father had already been in counseling prior to his criminal
conduct that resulted in the victim’s death and, thus, the counseling was not attributable to
McNeil’s crimes. Id. at 283, 346 P.3d at 300. The state argued that although the father’s
counseling was initiated prior to McNeil’s crime, it was hard to believe that after the murder of
his daughter the issue did not come up during subsequent counseling sessions. Id. at 284, 346
P.3d at 301. Noting that although the victim impact statements indicated that the family was
traumatized from McNeil’s crime and that post-death counseling was needed, this Court,
nonetheless, determined that the state had failed to present evidence of such fact. Id. There, we
held that because the state failed to prove causation, it was error for the district court to grant
restitution for the cost of counseling provided the victim’s father. Id.


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       In this case, the economic loss at issue is counseling services provided to a victim of
sexual abuse. The record shows that the victim had been sexually abused prior to Wisdom
becoming aware of it. Thus, in order to sufficiently show causation below, the state had the
burden to show that Wisdom’s conduct (the failure to report or stop the husband’s abuse of the
victim) caused the need for counseling. However, it is undisputed that the state did not offer any
evidence relating to the issue of restitution.2 Critical in this instance, the state failed to produce
evidence showing that the victim’s need for counseling was due to Wisdom’s failure to report or
protect the victim from sexual abuse. Furthermore, the state did not produce evidence showing
that the counseling related to Wisdom’s failure to report the husband or that the counseling
addressed any sense of betrayal held by the victim relating to Wisdom’s failure to report.
Instead, the state offered only argument, claiming that Wisdom was part of the reason the victim
needed counseling because the husband’s abuse of the victim continued after Wisdom learned of
it and failed to report it.    However, similar to the state’s argument in McNeil, the state’s
argument here is only speculative in nature and does not constitute evidence proving causation.
Id. at 284, 346 P.3d at 301.
       Despite the lack of evidence, the district court held that Wisdom was the cause of the
injury necessitating counseling based on Wisdom’s guilty plea and the presentence investigation
report (PSI). Here, these documents are insufficient to show causation. Indeed, Wisdom’s guilty
plea supports the contention that the victim was injured by Wisdom’s failure to protect the
victim. Likewise, the PSI demonstrates how the husband’s sexual abuse traumatized the victim.
Upon review, we note that neither document addresses, much less shows, that the victim’s need
for counseling correlated with Wisdom’s criminal conduct.            Certainly, it is plausible that
Wisdom’s conduct in failing to protect her daughter was addressed in some way during
counseling or prompted the need for focused counseling. However, the state failed to present
evidence demonstrating that such a correlation existed and, thus, failed to prove causation.



2
       At the sentencing hearing in support of its restitution request, the state referenced
documentation that had been provided to Wisdom supporting the state’s request for restitution
for expenses related to the victim’s counseling. We note that such documentation was not
included in the record on appeal, nor does it appear that the district court relied on this
documentation in its ruling.

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       We are constrained to hold that the state did not meet its burden to prove that the
counseling expenses were caused by Wisdom’s crime. Consequently, the district court’s finding
that Wisdom’s crime actually caused the need for counseling was not supported by substantial
evidence. Therefore, the district court erred by awarding restitution for the counseling costs.
Accordingly, we reverse the order awarding restitution.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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