State v. Tuso-Guerrero

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50693

STATE OF IDAHO, )
) Filed: November 1, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
ANTHONY JAMES ) OPINION AND SHALL NOT
TUSO-GUERRERO, ) BE CITED AS AUTHORITY
)
Defendant-Appellant. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Gerald F. Schroeder, District Judge. Hon. Kira L. Dale, Magistrate.

Decision of the district court, on intermediate appeal from the magistrate court,
affirming order for restitution, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Ben P. Greevy, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kale D. Gans, Deputy Attorney General,
Boise, for respondent.
________________________________________________

MELANSON, Judge Pro Tem
Anthony James Tuso-Guerrero appeals from a decision of the district court, on intermediate
appeal from the magistrate court, affirming an order for restitution. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Tuso-Guerrero set off a firework, which caused a fire on public land managed by the United
States Department of the Interior, Bureau of Land Management (BLM). The fire was known as
the “Hartley” fire. Tuso-Guerrero was charged with misdemeanor firing timber or prairie lands.
I.C. § 18-7004. He pled guilty, and the State filed a request for restitution for the costs incurred
by the BLM to contain and suppress the fire. After a hearing and written closing arguments, the

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magistrate court ordered restitution in the amount of $27,258.27. Tuso-Guerrero appealed to the
district court, which affirmed. Tuso-Guerrero again appeals.
II.
STANDARD OF REVIEW
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. Torrez, 156 Idaho 118, 119, 320 P.3d 1277, 1278 (Ct. App. 2014);
State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989). Thus, we will not overturn
an order of restitution unless an abuse of discretion is shown. Torrez, 156 Idaho at 120, 320 P.3d
at 1279. When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial 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. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
III.
ANALYSIS
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s
conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415, 224 P.3d 480,
482 (2009). However, as a matter of appellate procedure, our disposition of the appeal will affirm
or reverse the decision of the district court. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955,
958 (Ct. App. 2014). Thus, we review the magistrate court’s findings and conclusions, whether
the district court affirmed or reversed the magistrate court and the basis therefor, and either affirm
or reverse the district court.
Idaho Code Section 19-5304 provides that, unless a trial court finds that restitution would
be inappropriate or undesirable, it shall order a defendant found guilty of a crime which results in
economic loss to the victim to make restitution to the victim. A victim includes a person or entity

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who suffers economic loss or injury as a result of the defendant’s criminal conduct. Economic
loss includes direct out-of-pocket losses or expenses resulting from the criminal conduct and “shall
be based upon the preponderance of the evidence submitted to the court by the prosecutor,
defendant, victim or presentence investigator.” I.C. § 19-5304(6). Tuso-Guerrero does not deny
that the BLM is a victim in this case or that his conduct caused economic loss to the BLM. He
only appeals the amount of restitution ordered by the magistrate court, arguing that the evidence
presented to support certain labor and fleet costs was insufficient. Specifically, Tuso-Guerrero
argues that there was insufficient evidence from which the magistrate court could have determined
which costs would have been incurred by the BLM had there been no fire and that it was therefore
impossible to determine, by a preponderance of the evidence, the damages resulting from
Tuso-Guerrero’s conduct.
At the restitution hearing, a management and program analyst in BLM’s fire management
division was called as a witness for the State. She testified that her job duties include preparation
of a budget and that she is an “incident business specialist which deals with emergency policies of
wildland fire” and that she is “responsible for interagency fire cooperative agreements, the billings
and payments to states, and the trespass expense summary creations.” She had created an incident
expense summary for the fire, which was admitted in evidence. That exhibit (State’s
Exhibit 1/Defendant’s Exhibit A) as well as other exhibits were admitted at the hearing by
stipulation. The exhibits included BLM labor reports for the fire, individual employee time reports
for the BLM employees who were fighting the fire, and equipment utilization reports for
equipment used for fighting the fire. The witness testified that the labor costs shown on the
incident expense summary were “actual expenditures from our agency financials” and that the fleet
costs were “a combination of both the fixed costs and the utilization for the individual vehicles
that were on the incident.” The witness explained that she used “the actual expenditures from our
financial system.” On cross-examination, she testified that a “010” time code was used for an
employee’s base hours and that, if the fire had not occurred, an employee would have been paid
“at least their base hours.” She also testified that the labor costs claimed did not “include any
regular time with the accounting code 010.” The incident expense summary identified labor
expenditures of $17,836.22 and fleet expenditures of $12,813.03.

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At the restitution hearing, the magistrate court expressed an intention to award restitution
only for expenses which would not have been incurred had there been no fire. The magistrate
court requested closing argument on that issue, which was submitted in writing by both parties.
Regarding the labor expenditures, the magistrate court found:
The labor costs associated with suppressing the Hartley Fire total
$17,836.22. This total does not include any “regular time” with the accounting
code “010.” Rather, it includes only overtime, hazard pay, and a premium
associated with the labor costs. This amount represents the labor costs the BLM
incurred as a result of the Hartley Fire; it does not include the labor costs that the
BLM would have incurred absent the Hartley Fire.
As to fleet expenditures, the magistrate court found:
The fleet costs associated with suppressing the Hartley fire total $9,578.10.
This amount does not include fixed operating rate (“FOR”) expenses. It includes
only the use rate associated with the vehicles assigned to the fire. These are the
costs associated with using the vehicles (including fuel); it does not include fixed
costs that the BLM would have incurred absent the Hartley Fire.
Substantial evidence is “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). The evidence
presented to support the State’s claim for restitution was presented in a somewhat perfunctory
manner. On direct examination, the witness was only asked about the expense summary she had
prepared. There was no testimony offered to explain how the other exhibits (which supported the
claim for restitution) related to the summary. However, it is plain from the record (and from the
cross-examination of the witness) that the BLM labor reports (Exhibits B and C) form the basis
for the labor portion of the claim. When the labor amounts in those exhibits are totaled the result
is $17,836.22--the amount of the claim for labor. Furthermore, Exhibits E through N appear to be
crew and individual time reports related to the BLM labor report. The magistrate court found that
the claim for $17,836.22 did not include employees’ regular time. In fact, the claim for labor
expenses did include one entry coded “010” in the amount of $156.05. Accordingly, the correct
amount of labor expenses excluding employees’ regular time was $17,680.17.1 In any event, the

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This adjustment does not affect the restitution award because, ultimately, the State sought
the correct amount and the magistrate court’s restitution award of $27,258.27 reflects labor
expenses of $17,680.17 and fleet expenses of $9,578.10.

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award of labor expenses was supported by testimony that the “010” time code was used for
employees’ base hours and that, if the fire had not occurred, employees would have been paid “at
least their base hours” and that the labor costs claimed did not “include any regular time with the
accounting code 010.” The award of restitution of $17,680.17 for labor expenses is supported by
substantial and competent evidence.
Similarly, as to fleet expenses incurred for the fire, on direct examination the BLM witness
was only asked about the summary she had prepared on direct examination. But Exhibit O (a
BLM fleet report) lists the use rate for equipment separately from the “FOR” (fixed operating rate)
and there are separate records (Exhibits P through Z) which show starting and ending miles and/or
hours for each vehicle. Those records were discussed in some detail on cross-examination. It
appears that the magistrate court arrived at the $9,578.10 fleet expenditure by subtracting the
$3,234.93 fixed operating rate from the total $12,813.03 fleet claim. Restitution for fleet expenses
in that amount incurred as a result of the fire is supported by substantial evidence.
IV.
CONCLUSION
An award of restitution in the amount of $27,258.27 is supported by substantial evidence,
and Tuso-Guerrero has failed to demonstrate that the magistrate court erred in its decision.
Accordingly, we affirm the decision of the district court, on intermediate appeal from the
magistrate court, affirming the order for restitution.
Chief Judge GRATTON and Judge TRIBE, CONCUR.

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