                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45949

STATE OF IDAHO,                                  )
                                                 ) Filed: August 30, 2019
       Plaintiff-Respondent,                     )
                                                 ) Karel A. Lehrman, Clerk
v.                                               )
                                                 )
MOHAMAD BAKIR ALI HABEB,                         )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Judgment of restitution, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Mohamad Bakir Ali Habeb appeals from the district court’s judgment ordering him to
pay $5,860.45 in restitution following a jury verdict finding him guilty of felony malicious injury
to property. Habeb argues that there was insufficient evidence to support the restitution order
and that the district court improperly shifted the burden to him to disprove the evidence the State
presented in support of its restitution request. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       A jury found Habeb guilty of felony malicious injury to property. The State alleged that
Habeb committed the charged offense when he hit the victim’s vehicle, a 2011 Hyundai Elantra,
with a baseball bat. Following Habeb’s conviction, the State sought restitution in the amount of



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$6,060.45. Following an evidentiary hearing, the district court ordered restitution in the amount
of $5,860.45. Habeb appeals. 1
                                                  II.
                                    STANDARD OF REVIEW
       We will not overturn an order of restitution unless an abuse of discretion is shown. State
v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct. App. 2002). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine whether the lower court: (1) correctly perceived the issue as one of discretion,
(2) acted within the boundaries of such discretion, (3) acted consistently with any legal standards
applicable to the specific choices before it, and (4) reached its decision by an exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
       The determination of the amount of restitution, which includes the issue of causation, is a
question of fact for the trial court. State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401
(2011); 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; State v. Lombard, 149 Idaho
819, 822, 242 P.3d 189, 192 (Ct. App. 2010).
                                                 III.
                                            ANALYSIS
       Habeb argues that the district court abused its discretion in awarding restitution in the
amount of $5,860.45 because there was insufficient evidence to support the award and because
the district court improperly shifted the burden to him to disprove the evidence the State
submitted in support of its request. The State responds that there is substantial evidence to
support the restitution award and that Habeb’s burden-shifting argument is not preserved and
otherwise lacks merit. We hold that Habeb has failed to meet his burden of showing the district
court abused its discretion in awarding restitution.
       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. A court acts within the boundaries of its

1
         Habeb was also found guilty of misdemeanor assault and reckless driving. However, the
restitution in this case is only related to the guilty verdict for felony malicious injury to property.

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discretion in awarding restitution if the award is supported by the preponderance of the evidence
submitted by the prosecutor, defendant, victim, or presentence investigator. State v. Stewart, 161
Idaho 235, 236, 384 P.3d 999, 1000 (Ct. App. 2016). A preponderance of the evidence means
that the evidence shows something to be more probably true than not. Ada Cty. Prosecuting
Attorney v. DeMint, 161 Idaho 342, 344, 385 P.3d 897, 899 (Ct. App. 2016).
       At the restitution hearing, the State admitted three exhibits without objection: (1) a
Kelley Blue Book valuation for a 2011 Hyundai Elantra indicating a value between $6,535 and
$8,032; (2) a repair estimate from a body and paint shop in the amount of $5,860.45; and (3) an
estimate for repair of the vehicle’s fuel system in the amount of $200. The State also presented
testimony from the individual who was driving the vehicle at the time the damage was inflicted,
and the district court considered the trial testimony of an individual who witnessed Habeb hitting
the vehicle with a baseball bat. Habeb also testified at the restitution hearing.
       Following the restitution hearing, the district court took the State’s request under
advisement and subsequently issued a written decision. In its decision, the district court denied
the $200 request for repairing the fuel system, concluding there was insufficient evidence
connecting the repair to the damage caused by Habeb. The district court granted the remainder
of the State’s request for $5,860.45 to repair the vehicle. In its decision, the district court noted
that the vehicle was purchased by the driver’s father and that the driver testified that his father
“rebuilt” the vehicle after he purchased it because the vehicle had been in an accident. Based on
this testimony, the district court assumed the vehicle had a “salvage title” and concluded: “It can
safely be said that the value of a vehicle or vessel with a salvage title is less than that for a
vehicle or vessel with a ‘clean’ title, all else being equal” because “it is a crime to sell a salvage
motor vehicle without telling the buyer the vehicle has been totaled.”              The district court,
however, noted that it did not know how much the value decreased because no evidence of “the
value of the vehicle with a salvage title was introduced.” According to the district court, the
value of the vehicle was important because the cost of repair is “very close to the lower end of
the value” according to the Kelley Blue Book and the victim is only entitled to the cost of repair
if it does not exceed the value of the vehicle. Ultimately, the district court inferred the Hyundai
was a “salvage vehicle” and, because Habeb did not introduce any evidence of the “actual effect




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of that fact on the value of a car, let alone this car,” the district court awarded the cost of repair
because that cost was less than the “lowest estimate” of the vehicle’s value.
        Habeb relies on I.R.E. 301, State v. Hughes, 130 Idaho 698, 946 P.2d 1338 (Ct. App.
1997), and Bongiovi v. Jamison, 110 Idaho 734, 718 P.2d 1172 (1986) in support of his argument
that the district court improperly shifted the burden to him to prove that the value of the car was
less than the repair cost. Specifically, Habeb contends that, “without evidence of the actual value
of the car, a repair estimate can only prove the actual loss based on the presumption that the
amount to repair is lower than the actual value of the car,” but he “burst” that presumption when
he elicited testimony that a vehicle with a salvage title has a lower market value than a vehicle
with a clean title. According to Habeb, this presumption-bursting evidence required the State to
produce evidence of actual market value in order to prove that the repair value was less than the
actual market value.
        Habeb’s reliance on I.R.E. 301 is misplaced. Idaho Rule of Evidence 301 provides, in
part:
                (a)    Effect. In a civil case, unless a statute, Idaho appellate decision, or
        these rules provide otherwise, the party against whom a presumption is directed
        has the burden of producing evidence to rebut the presumption. But this rule does
        not shift the burden of persuasion, which remains on the party who had it
        originally. The burden of producing evidence is satisfied by evidence sufficient
        to permit reasonable minds to conclude that the presumed fact does not exist. If
        the party against whom the presumption operates does not meet the burden of
        producing evidence, the presumed fact must be deemed proved. If that party
        meets the burden of producing evidence, the jury must not be instructed on the
        presumption and the trier of fact may determine the existence or nonexistence of
        the presumed fact without regard to the presumption.
The State correctly notes that Habeb’s reliance on I.R.E. 301 is raised for the first time on
appeal. Habeb responds that this Court should decline to consider the State’s preservation
argument because it is bare and conclusory and, in any event, the authority upon which Habeb
relies merely reflects an “evolved” argument that does not change the substantive issue before
this Court on appeal. See Ada Cty. Highway Dist. v. Brooke View, Inc., 162 Idaho 138, 395 P.3d
357 (2017). Even if Habeb’s appellate argument is properly characterized as one that has
evolved from the arguments he made in district court, Habeb has cited no authority that supports
application of the presumption principles in I.R.E. 301 to a restitution proceeding.



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       Habeb contends that Bongiovi provides “a useful hypothetical which illustrates how the
burdens shift” under I.R.E. 301 in this case. Bongiovi involved litigation to set aside a deed
allegedly procured by undue influence. Bongiovi, 110 Idaho 734, 718 P.2d 1172. The I.R.E. 301
presumption at issue was based on case law articulating when a presumption of undue influence
is appropriate, and the hypothetical from the comments to I.R.E. 301, on which Habeb relies,
relates to burdens of production in the context of a motion for a directed verdict. Bongiovi, 110
Idaho at 736-37, 718 P.2d at 1174-75. There are no directed verdicts in restitution hearings and,
although Habeb also relies on Hughes, that case does not support his contention that there is a
presumption regarding value relevant to restitution proceedings.
       Hughes is not a restitution case. The issue in Hughes was whether the State met its
burden of proving the defendant was guilty of felony malicious injury to property. Hughes, 130
Idaho at 700, 946 P.2d at 1340. A majority of this Court concluded that the State did not meet its
burden because there was insufficient evidence to establish that the value of the property damage
exceeded $1,000, which was the threshold amount necessary to elevate the offense from a
misdemeanor to a felony. Id. at 704, 946 P.2d at 1344. It was in this context that the Court
considered the proper measure of value of damages within the meaning of I.C. § 18-7001, the
statute criminalizing malicious injury to property. In addressing this question, the Court, after
considering cases from other jurisdictions, concluded that, in cases where the defendant has
harmed but not destroyed the property, the State may prove value by using the diminution of the
object’s fair market value or the reasonable cost of repair. Hughes, 130 Idaho at 703, 946 P.2d at
1343. When the cost of repair is chosen, this measure may not exceed the market value of the
item before the damage because a defendant cannot cause an economic loss that surpasses the
actual value of the property damaged. Id. The defendant may challenge the cost of repair
measure by presenting evidence of a lesser fair market value. Id.
       Assuming the method of valuation articulated in Hughes in the context of distinguishing
between misdemeanor and felony malicious injury to property applies to restitution requests
arising from such a charge, Hughes does not articulate any presumptions, much less a
presumption under I.R.E. 301. Habeb’s assertion that the rationale of Hughes “gave rise to a
presumption” that the actual economic loss in this case equaled the cost of repair is, therefore,
incorrect. Habeb is also incorrect in his assertion that he “burst” the presumption by eliciting


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testimony that the vehicle “had a salvage title.” Although the district court inferred the car had a
“salvage title” based on the driver’s testimony that his father “rebuilt” the car after buying it,
there was no evidence presented that the vehicle, in fact, had a “salvage title.” 2 The State was
not obligated to present additional evidence simply because Habeb elicited testimony that he
believed implied that the vehicle may have been less valuable than the cost of repair.             If
anything, Hughes required Habeb to present evidence that the fair market value of the vehicle
was less than the cost of repair if he believed restitution should be limited because the repair cost
exceeded the value of the vehicle. See Hughes, 130 Idaho at 703, 946 P.2d at 1343 (stating that
the defendant may challenge the cost of repair by presenting evidence of a lesser fair market
value). As noted by the district court, Habeb failed to present evidence that the actual fair
market value of the vehicle was less than the repair cost.
       From a sufficiency of the evidence perspective, which is how Habeb has framed his claim
on appeal, there was sufficient evidence to support the district court’s conclusion that the cost of
repair was an appropriate measure of restitution and the repair cost awarded was supported by
the estimate submitted without objection. Habeb has, therefore, failed to show the district court
abused its discretion in awarding $5,860.45 in restitution.
                                                IV.
                                         CONCLUSION
       We hold that substantial evidence supported the district court’s decision to award
$5,860.45 in restitution. The district court’s judgment of restitution is affirmed.
       Chief Judge GRATTON and Judge BRAILSFORD, CONCUR.




2
        The driver elaborated on the repairs made to the vehicle after it was purchased. Those
repairs included changing the front bumper, the radiator, and the pier support on the right
headlight. The hood was also changed because the driver wanted a “nice one” not an “old one.”
It is not apparent from the evidence presented that the vehicle was declared salvage or had been
damaged to the extent that the owner, or an insurer, or other person acting behalf of the owner
determined that the cost of parts and labor minus the salvage value made it uneconomical to
repair or rebuild the vehicle. See I.C. § 49-123(2)(o) (defining salvage vehicle).

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