State v. Ogden , 416 P.3d 1132 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 8IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
JESSE ROGER OGDEN,
Appellant.
No. 20150922
Filed February 27, 2018
On Certification from the Court of Appeals
Second District, Ogden
The Honorable Judge Joseph Bean
No. 131902263
Attorneys:
Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,
Salt Lake City, Letitia J. Toombs, Ogden, for appellee
Samuel P. Newton, Kalispell, MT, for appellant
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUDGE BATES, and JUDGE MCKELVIE joined.
Having recused himself, JUSTICE HIMONAS does not participate
herein; DISTRICT COURT JUDGE MATTHEW D. BATES sat.
Due to her retirement, JUSTICE DURHAM did not participate herein;
DISTRICT COURT JUDGE RICHARD D. MCKELVIE sat.
JUSTICE PETERSEN became a member of the Court on
November 17, 2017, after oral argument in this matter,
and accordingly did not participate.
JUSTICE PEARCE, opinion of the Court:
STATE v. OGDEN
Opinion of the Court
INTRODUCTION
¶1 Jesse Ogden sexually abused Victim several times before her
fifth birthday. Several years later, a friend of Victim’s mother
repeatedly abused Victim sexually. Ogden pled guilty to two counts
of aggravated sexual abuse of a child. Victim intervened in Ogden’s
restitution hearing to seek restitution for, among other things, the
anticipated cost of mental health treatment for the remainder of her
life. The district court entered orders for complete and court-ordered
restitution. Ogden challenges the restitution orders, and levels a
variety of arguments against them. Ogden contends that Victim’s
damages were caused, at least in part, by her subsequent sexual
abuse, and that the district court based its complete restitution
award on speculation about expenses she would incur in the future.
¶2 We clarify the standard the Crime Victims Restitution Act
requires the district court to employ to determine whether a
defendant caused the loss for which a victim seeks restitution. And
we remand to permit the district court to apply that standard.
Because the issue will likely arise again on remand, we also take the
opportunity to address Ogden’s argument that the district court did
not have an evidentiary basis to support its conclusions about some
of Victim’s future expenses.
BACKGROUND
¶3 Victim, her two brothers, her sister, and Victim’s mother
(Mother) lived with Ogden. Ogden sexually abused Victim several
times during the first few years of her life. When Victim was five
years old, she disclosed the abuse to Mother. Ogden subsequently
moved out of the family home. Victim’s brothers blamed and
ostracized Victim for Ogden’s separation from the family. To protect
her from her brothers’ harassment, Mother sent Victim to live with
several other families.
¶4 After Victim disclosed that Ogden had abused her, she
attended therapy for approximately four years. During this time,
Victim demonstrated “angry and anxious behavior along with self-
injurious behavior of scratching herself when upset.” Toward the
end of treatment, Victim’s therapist reported that Victim “had made
considerable progress in treatment.” Victim concluded treatment
when she was ten years old.
¶5 At this point, Victim resided with one of Mother’s friends,
S.G. Mother was aware that S.G. was a registered sex offender. S.G.
sexually abused Victim on multiple occasions while she stayed with
him. In 2012, the Division of Child and Family Services (DCFS)
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removed Victim from Mother’s custody and arranged therapy for
Victim. Victim’s therapist diagnosed her with adjustment disorder
and post-traumatic stress disorder. Victim also displayed symptoms
of anxiety and depression. Victim continued therapy for a year. Her
therapist noted that Victim “achieved [her] treatment goals of
decreasing anxiety and increasing social skills” but discharged
Victim from treatment because she was “unwilling to talk about the
sexual abuse.” Her therapist concluded that “[t]herapy might be
warranted in the future when [Victim] is ready to deal with [the
sexual abuse].”
¶6 Ogden confessed to the abuse and the State charged him
with one count of sodomy upon a child and one count of aggravated
sexual abuse of a child. The State later amended the charges to two
counts of attempted aggravated sexual abuse of a child. Ogden
pleaded guilty to both counts and the district court sentenced him to
two concurrent terms of three years to life. Victim filed a motion for
restitution, arguing that she “suffered significant pecuniary damage
as a result of the sexual abuse committed against her” by Ogden.1
Victim supported her motion with a forensic evaluation from Dr.
David Corwin and a life care plan from Sheryl Wainwright. Both Dr.
Corwin and Ms. Wainwright testified at the restitution hearing.
The Forensic Evaluation
¶7 Dr. Corwin, a psychiatrist, reviewed Victim’s medical,
psychological, and DCFS records. Dr. Corwin also interviewed
Victim and Mother on two occasions. He observed that Victim
demonstrated clinically significant symptoms of post-traumatic
stress disorder and moderate sexual distress. He concluded that
Victim
suffers significant psychological trauma caused by
[Ogden’s] sexual abuse of her, the family disturbances
associated with that sexual abuse including
harass[ment] by her older brothers and living away
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1 During the pendency of Ogden’s criminal case, Victim sued
Ogden for general and punitive damages in civil court. Victim’s
counsel in the civil case intervened in this restitution proceeding on
Victim’s behalf. The civil case is the subject of another appeal in this
court. Because we vacate the court-ordered restitution award that
lies at the center of that appeal, we have also vacated the civil award
and remanded for further proceedings.
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from her family with various other families
culminating in her spending considerable time with
[S.G.] . . . where she was probably sexually abused
again . . . . The impacts of the sexual abuse are many
and can last throughout life. Separate contributions of
the sexual abuse by [Ogden and S.G.] cannot be
reliably parsed. . . . The full extent of [Victim’s] injuries
is likely not yet fully apparent. She may well develop
more serious problems in the future that may require
treatment and interventions beyond what I recommend
at this time.
¶8 Dr. Corwin also opined that Victim “is at an increased risk
for a variety of behavioral, psychiatric and physical problems
because of the sexual abuse, exposure to domestic violence and the
other stresses and losses associated with it.” He explained that these
problems include “[d]epression, suicidal thoughts, drug and alcohol
problems, . . . school performance and vocational problems among
many others including long-term health problems like increased
risks of heart disease not associated with other risk factors like
diabetes, smoking and high blood pressure.”
¶9 Dr. Corwin recommended that Victim “receive a course of
Trauma Focused Cognitive Behavior Treatment (TF-CBT) within the
near future as soon as a therapist trained in TF-CBT, or some
similarly evidence-based treatment, can be found for her.” He added
that Victim “should be provided the resources for five additional
trauma focused treatment courses, totaling six, of evidence-based
individual psychotherapy over the course of her life. Each course
may last for up to two years of weekly individual therapy.”
The Life Care Plan
¶10 Ms. Wainwright, a registered nurse and certified life care
planner, created a life care plan for Victim (the Plan). 2 To craft the
Plan, Ms. Wainwright reviewed Victim’s medical, psychological, and
DCFS records. She also reviewed Dr. Corwin’s forensic evaluation
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2 The Plan explains that it is “a dynamic document based upon
published standards of practice, comprehensive assessment, data
analysis, and research, which provides an organized, concise plan
for current and future needs, with associated costs for individuals
who have experienced catastrophic injury or who have chronic
health care needs.”
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and included his recommendations in the Plan. She did not examine
or interview Victim or Mother.
¶11 Ms. Wainwright projected the lifetime costs of treatment
and care for Victim in several categories, two of which are relevant
to this appeal: inpatient and outpatient psychiatric services, and
medications.
1. Inpatient and Outpatient Psychiatric Services
¶12 The Plan estimated the lifetime cost of Victim’s
psychological counseling, which included the cost of inpatient
hospitalizations, intensive outpatient programs, a psychologist for
Mother, a psychologist for Victim, eye movement desensitization
and reprocessing (EMDR) therapy, and a neuropsychological
evaluation. The Plan explained that “[d]epression, anxiety,
self-destructive behaviors, dissociative behaviors, substance abuse,
borderline personality disorder, promiscuity or sexual dysfunction,
issues with relationships, and physical sequelae are common
among[] victims of childhood sexual abuse.” The Plan also explained
that “clients with PTSD who have suffered from childhood sexual
abuse often have episodes in their lifetime that require an inpatient
admission to manage their symptoms and stabilize them.”
¶13 The Plan noted that Victim had engaged in self-harm which
“required emergency room visits for deep cuts that were not
repairable at the time of her admission.” The Plan recommended that
because Victim “was not in therapy [at the time of the Plan’s
preparation], and her behavior is evidence that she does not have the
strategies in place to manage her symptoms, she will likely require
multiple admissions throughout her lifetime.” Ms. Wainwright
explained that she had clients who were hospitalized multiple times
a year. And the Plan included ten inpatient hospitalizations for
Victim’s lifetime, lasting seven to twelve days per admission. It also
included the cost of ten intensive outpatient programs. The Plan
recommended EMDR because it is “a recommended and accepted
treatment protocol for clients with PTSD.” Finally, the Plan
recommended a neuropsychological evaluation “to evaluate
[Victim’s] functional abilities for work and her personal life.”
2. Medications
¶14 The Plan also forecasted the lifetime cost of medications to
combat anxiety, sleeping disorders, and pain. The Plan explained
that even though Victim was not taking any medications,
“medication management is a vital part of treatment for anxiety,
depression, and PTSD.” The Plan included the cost of various
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Opinion of the Court
medications for depression because “[s]tudies indicate [they] are the
most effective medications in the treatment of PTSD associated with
childhood sexual abuse, with associated anxiety and depression.”
The Plan also explained that “clients who are the victims of
childhood sexual abuse tend to develop physical symptoms
including chronic fatigue, fibromyalgia, chronic pain, irritable bowel,
difficulty breathing, and cardiac issues,” but it is unclear whether the
Plan included the cost of medications to treat these issues in its
recommendation.
The Restitution Hearings
¶15 Victim intervened in the restitution hearing and was
represented by the same counsel who was pursuing her claim for
civil damages against Ogden in a separate proceeding. The State
initially did not appear at the restitution hearing. The district court
explained that it felt “uncomfortable without at least somebody
sitting by from the State” because the court “believe[d] the State does
need to be present.” The State then made a brief appearance but
simply requested to be excused from the hearing. The State
explained that it wanted to “leave [the hearing] in the hands of
[Victim’s counsel]” because “[t]hey have . . . all of the documents,
witnesses, et cetera.” Defense counsel did not object and the court
excused the State. The State left the hearing, never to return. From
that point on, Victim’s counsel presented evidence concerning the
losses she alleged Ogden had caused (or would cause) her to suffer.
¶16 At the hearing, Dr. Corwin spoke generally about the
impacts of sexual abuse on a child and the treatment that typically
benefits abuse victims. He explained that most frequently, the
impacts include “increased anxiety, depression, suicidal ideation,
suicidal acts, self-harm acts, . . . diminished learning ability and later
decreased vocational attainment, increased difficulty in
interpersonal relationships and in intimate relationship[s], [and]
problems with sexual functioning.” Dr. Corwin also explained that
“sexually abused children are more likely to get sexually abused
later in life.” He explained that his “view of future care of people
who have experienced severe trauma is that they need to have the
availability of periods of treatment throughout their life.”
¶17 Dr. Corwin reiterated the conclusions and treatment
recommendations contained in his forensic evaluation. He explained
that at the time he assessed Victim “she was very symptomatic,”
“failing in school,” and engaging in self harm behaviors. He
concluded that although Victim is “at least [of] normal intelligence,”
she was failing school because “she is so adversely impacted from
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the severe stress that she has experienced.” Dr. Corwin concluded
that Victim “is a severely affected sexually abused child . . . who
shows a wide variety of psychological and behavioral problems that
are known to be related to child sexual abuse and other early
childhood adversity which she has also experienced, and that she is
likely to have lifelong continued increased vulnerability to a wide
variety of health, mental health, behavioral problems, and that the
prognosis for her is guarded.”
¶18 Dr. Corwin acknowledged that Victim had been abused by a
second individual years after Ogden’s abuse. Dr. Corwin testified
that “[i]t’s not possible” to separate the psychological trauma that
Victim suffered from each perpetrator “[b]ecause they are so
interwoven and sort of mixed together in her.” He stated that he did
not believe the damage could be “scientifically or reliably, accurately
apportioned,” and to do so would be “pure speculation.” He opined
that one could “[p]robably . . . say that the subsequent stressor of
being molested by [S.G.] has also contributed to the severity of her
present condition,” but by how much was undeterminable. And
additionally, Dr. Corwin explained that the earlier trauma “builds
and relates and contributes to her vulnerability to the subsequent
one.” He also noted that “in general it is believed that earlier
traumas are more destructive because there were more
developmental phases left for a person to go through. So early
trauma, major trauma, is believed to be somewhat more severe than
later trauma.”
¶19 Ms. Wainwright also testified at the hearing. She explained
that she is not qualified to diagnose conditions or prescribe
medications. She based her estimates in the Plan on “literature, [her]
experience, and . . . one recommendation from Dr. Corwin.” When
counsel asked her how she formulated the numbers in the Plan, she
responded, “I made some assumptions. And when we do a life care
plan, we’re kind of making assumptions and looking into a crystal
ball a little bit. But . . . I made assumptions based on the statistics
that I read in several articles talking about the long term effects of
child sex abuse and also in my experience . . . case managing clients
with child sex abuse.”
¶20 Before issuing its restitution order, the district court made
several findings with respect to causation. The court acknowledged
that Dr. Corwin “felt strongly that there was no way to really
allocate the damage between perpetrators,” because it would be
“pure speculation” to do so. But the court also found that “earlier
trauma was believed by [Dr. Corwin] to contribute more to the later
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Opinion of the Court
problems.” The court also found that, because Dr. Corwin testified
that “sexual abuse victims are six times more likely to be sexually
abused again,” Victim “was more vulnerable as a sexual abuse
victim because of [Ogden], because of his actions.”
¶21 Before issuing its restitution order, the district court asked
“[w]hat, if any, is the collateral effect of this Court’s ruling on the
civil matter or other matters that may be out there?” The court
opined that “what happens here doesn’t have any effect on what has
to be proven in [the] civil action,” because “there are no rules of
evidence, very limited rules of evidence in this matter that would
take place in the civil action.” Despite apparently misunderstanding
that the complete restitution order would become an enforceable
civil judgment, the district court entered a complete restitution order
that totaled $2,092,306.
¶22 At a supplemental restitution hearing, the district court
requested information about Ogden’s assets for a final determination
of court-ordered restitution. Ogden held two life insurance
policies—one for his wife and one for his children, including Victim.
The court ordered that “the beneficiaries be changed on the policies,”
so that Ogden’s “[c]hildren and wife . . . are all equal beneficiaries on
the polic[y].” Victim requested that one-half of the equity in the
home be applied to the value of court-ordered restitution. The court
ordered that “[h]alf of the equity based on the market value would
go to [Ogden’s] estate and would be used for the court ordered
restitution.” The court stated it could “award that one-half of the
equity. That can become a lien on the home. It can be foreclosed
[and] would essentially be a lien on the home, whatever that final
judgment is.”
The Restitution Order
¶23 As noted above, the court set complete restitution at
$2,092,306. The court found that “[e]ach of the categories of figures
from Dr. Corwin and Sheryl Wainwright are necessary for [Victim].”
The court ordered that “[a]ny biological or adopted children who are
already listed on the life insurance policies are to be named as equal
beneficiaries along with [Ogden’s] current wife. [Ogden] may not
add or remove any beneficiaries from the policies.” The court
“award[ed] [half] of the equity of [Ogden’s] home based on fair
market value less [a] homestead exemption to be paid to [Victim].”
Ogden’s court-ordered restitution was $127,089.60, plus one-half of
the equity in the home, not including Ogden’s homestead
exemption, plus Victim’s portion of the proceeds from the life
insurance policies.
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ISSUES AND STANDARDS OF REVIEW
¶24 Ogden argues that the district court misread the statute to
conclude that the Crime Victims Restitution Act required something
less than proximate causation to establish that Ogden caused
Victim’s damages. We review questions of statutory interpretation
for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374
P.3d 3. 3
¶25 Although we vacate the district court’s restitution award
because it applied an incorrect causation standard, we will address
one of Ogden’s challenges to the restitution award because we
believe it will be helpful to the district court on remand. See State v.
Low, 2008 UT 58, ¶ 61, 192 P.3d 867 (When “there are other issues
presented on appeal that will likely arise [on remand],” we may
“exercise our discretion to address those issues for purposes of
providing guidance on remand.”). Ogden contends that the district
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3 Ogden also contends that the Crime Victims Restitution Act is
unconstitutional because it “denied . . . Ogden due process by
preventing him access to the procedural remedies he would have
had in civil court . . . .” The State argues that Ogden’s constitutional
challenge is unpreserved. Ogden counters that if his constitutional
challenge was unpreserved, trial counsel provided ineffective
assistance by failing to properly state his objection to the statute. We
conclude that his due process argument is unpreserved and decline
to review his ineffective assistance of counsel argument because it is
inadequately briefed. An appellant’s brief “must explain, with
reasoned analysis supported by citations to legal authority and the
record, why the party should prevail on appeal.” UTAH R. APP. P.
24(a)(8). “A party must cite the legal authority on which its
argument is based and then provide reasoned analysis of how that
authority should apply in the particular case, including citations to
the record where appropriate.” Bank of Am. v. Adamson, 2017 UT 2,
¶ 13, 391 P.3d 196. “An appellant that fails to devote adequate
attention to an issue is almost certainly going to fail to meet its
burden of persuasion.” Id. Ogden cites no authority for the
proposition that trial counsel’s failure to object on due process
grounds was “objectively deficient” and provides us with only
conclusory analysis on that topic. Ogden’s briefing does not
persuade us and we leave the constitutional question for another
day.
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Opinion of the Court
court abused its discretion in its calculation of complete restitution
because Victim’s damages were impermissibly speculative. We “will
not disturb a district court’s [restitution] determination unless the
court exceeds the authority prescribed by law or abuses its
discretion.” State v. Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104.
ANALYSIS
I. The Crime Victims Restitution Act Permits
Recovery of Costs the Defendant Has Proximately
Caused the Victim to Suffer
¶26 The Crime Victims Restitution Act (CVRA) 4 requires courts
to order restitution “[w]hen a defendant enters into a plea
disposition or is convicted of criminal activity that has resulted in
pecuniary damages . . . .” UTAH CODE § 77-38a-302(1). The CVRA
requires the district court to calculate two types of restitution:
complete restitution and court-ordered restitution. See id.
§ 77-38a-302(2).
¶27 “Complete restitution” means the “restitution necessary to
compensate a victim for all losses caused by the defendant.” Id.
§ 77-38a-302(2)(a). The court determines complete restitution based
solely on the losses the victim has suffered, without regard to the
defendant’s ability to pay. See id. § 77-38a-302(5)(b). Once the district
court determines “that a defendant owes restitution, the clerk of the
court . . . enter[s] an order of complete restitution . . . on the civil
judgment docket . . . .” 5 Id. § 77-38a-401(1).
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4 Crime Victims Restitution Act, UTAH CODE §§ 77-38a-101–
77-38a-601.
5 If the victim chooses to pursue a civil action to recover damages
in addition to those in a complete restitution order, “[e]vidence that
the defendant has paid or been ordered to pay restitution . . . may
not be introduced in any [related] civil action . . . . However, the
court shall credit any restitution [already] paid . . . against any
judgment in favor of the victim in the civil action.” Id.
§ 77-38a-403(1).
During the proceedings below, the district court questioned
“[w]hat, if any, is the collateral effect of this Court’s ruling on the
civil matter or other matters that may be out there?” The court
further stated that “what happens here doesn’t have any effect on
what has to be proven in [the] civil action,” because “there are no
(continued . . .)
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¶28 “Court-ordered restitution,” on the other hand, “means the
restitution the court having criminal jurisdiction orders the
defendant to pay as a part of the criminal sentence.” Id.§ 77-38a-302(2)(b). Unlike complete restitution, courts consider the
effect on the defendant to set the amount of court-ordered
restitution, including the defendant’s “financial resources,” “other
obligations,” “the rehabilitative effect,” and “other
circumstances . . . .” Id. § 77-38a-302(5)(c). The district court then
orders the defendant to pay the restitution as “part of the criminal
sentence.” Id. § 77-38a-302(2)(b).
¶29 Ogden argues that the CVRA requires a defendant to only
pay for losses that he proximately caused and that the district court
applied the wrong causation standard. As an initial matter, it is not
entirely clear what causation standard the district court used. It may
have been but-for causation, or the “modified but for” test that our
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rules of evidence, very limited rules of evidence in this matter that
would take place in the civil action. So . . . I can see why this would
not have a binding effect in the . . . civil action.”
The district court correctly identified a number of problems with
the restitution statute when it is applied to a complicated set of facts,
but it misapprehended the impact of entering an award of complete
restitution. The complete restitution order became a civil judgment
that Victim was entitled to attempt to collect. It appears that the
Legislature crafted this restitution framework to provide an efficient
and less intrusive way for a victim to obtain restitution for losses a
defendant has caused. And the system may work effectively when
the losses are simple and clear cut. For example, if a defendant
breaks a victim’s glasses during an assault, the district court is well
positioned to order a defendant to pay the cost of replacing the
glasses without the benefit of the procedures that would normally
apply to a civil case. As this case highlights, that framework does not
work as well when there are difficult issues of causation or a need to
predict future expenses. That category of cases may benefit from the
tools we have developed in the civil context to deal with complex
questions of causation and damages. There are at least two ways to
address this: the Legislature could revisit the statute or the Supreme
Court Advisory Committee on the Rules of Criminal Procedure
could examine what we might do within the existing statutory
framework to promote a process that is fair to both victims and
defendants in more complex cases.
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Opinion of the Court
court of appeals has applied on a number of occasions. See State v.
Poulsen, 2012 UT App 292, ¶ 11, 288 P.3d 601 (“Utah has adopted a
modified ‘but for’ test to determine whether pecuniary damages
actually arise out of criminal activities.” (quoting State v. Brown, 2009
UT App 285, ¶ 11, 221 P.3d 273)). See also State v. Ruiz, 2016 UT App
18, ¶ 12, 366 P.3d 1230 (“In order to determine complete restitution,
the trial court was required to employ ‘[a] modified “but for” test.’”
(alteration in original) (quoting State v. Ruiz, 2013 UT App 166, ¶ 8,
305 P.3d 223)); State v. Birkeland, 2011 UT App 227, ¶ 11, 258 P.3d 662(“The circumstances . . . readily support an award of restitution for
the loss . . . under our modified but for test.”). Notwithstanding that
ambiguity, it is clear that the district court employed something
other than proximate cause to assess which of Victim’s losses Ogden
caused. And this matters because the causation standard applied
could well affect the outcome of this case.
¶30 The State argues that but-for causation is the appropriate
standard, but also contends that the causation standard is irrelevant
because any standard—including proximate cause—would support
the restitution award the court entered.
¶31 To determine what causal connection the Legislature
intended to apply to the CVRA, we start with the statute’s language.
“‘When interpreting a statute, it is axiomatic that this court’s primary
goal “is to give effect to the legislature’s intent in light of the purpose
that the statute was meant to achieve.”’” Garfield Cty. v. United States,
2017 UT 41, ¶ 15, -- P.3d -- (quoting Biddle v. Wash. Terrace City, 1999
UT 110, ¶ 14, 993 P.2d 875). “The best evidence of the legislature’s
intent is ‘the plain language of the statute itself.’” State v. Miller, 2008
UT 61, ¶ 18, 193 P.3d 92 (citation omitted).
¶32 The CVRA addresses causation in two provisions. The
statute allows the district court to enter an order “[w]hen a
defendant enters into a plea disposition or is convicted of criminal
activity that has resulted in pecuniary damages . . . .” UTAH CODE
§ 77-38a-302(1) (emphasis added). And the district court awards
“‘[c]omplete restitution’ . . . to compensate a victim for all losses
caused by the defendant.” 6 Id. § 77-38a-302(2)(a) (emphasis added).
Thus, the relevant language for our analysis is “resulted in” and
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6 Court-ordered restitution does not have a separate causation
standard. See UTAH CODE § 77-38a-401(2).
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“caused by.” And, unfortunately, neither speaks explicitly to the
causation standard the Legislature intended. 7
¶33 First, the phrase “resulted in” does not, by itself, tell us what
type of causation the statute requires. To “result” is “to proceed or
arise as a consequence, effect, or conclusion.” Result,
MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary
/result (last visited Feb. 7, 2018). However, something that would
not have happened but for someone’s action (a but-for cause) could
be described as “a consequence, effect, or conclusion,” just as easily
as an action that had a more direct causal connection (such as
proximate cause). See id.¶34 “Caused by” reveals just as little about what the Legislature
intended. “Caused by” could refer to a but-for cause or a proximate
cause. UTAH CODE § 77-38a-302(2)(a). As such, the plain language by
itself does not answer the question.
¶35 We confronted a similar linguistic puzzler in Barneck v. Utah
Department of Transportation. 2015 UT 50, 353 P.3d 140. There, we
needed to determine what causation standard the Legislature
intended to apply to a provision of the Governmental Immunity Act
(GIA). Id. ¶ 2. The GIA waives immunity for “any injury caused
by . . . a defective, unsafe, or dangerous condition of any highway
[or] . . . culvert,” but “reinstated [immunity] for injuries that ‘arise [ ]
out of, in connection with, or result[ ] from’ a latent defective
condition of a culvert; from the ‘management of flood waters’; or
from the ‘construction, repair, or operation of flood or storm
systems.’” Id. ¶¶ 2, 36 (alterations in original) (omissions in original)
(citations omitted).
¶36 We ultimately concluded that the GIA reinstates immunity
only when proximate cause exists between the injury and the defect,
management, or construction. Id. ¶¶ 36, 44. There, we recognized
that “the [‘]results from’ formulation may properly be understood as
the invocation of a but-for test,” but that “[s]ometimes ‘results from’
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7 Ogden also argues on appeal that damages should be
apportioned between him and S.G. We do not decide whether the
Liability Reform Act has any place in restitution proceedings
because Ogden did not preserve the argument below.
Apportionment was discussed only briefly and generally, and
Ogden never raised the Liability Reform Act at the restitution
hearing.
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Opinion of the Court
is understood to convey the principle of proximate cause.” Id. ¶¶ 39,
41.
¶37 We also reasoned that “courts ‘read phrases like “results
from” to require but-for causality’ only ‘[w]here there is no textual or
contextual indication to the contrary.’” Id. ¶ 41 (alteration in original)
(citation omitted). We then looked at the statutory framework for a
contrary indication—an indication we found, in part, by
acknowledging that a but-for standard for the reinstatement of
immunity would, in practice, swallow the waiver.8 Id. ¶¶ 42–44.
¶38 Examining the CVRA’s structure, we conclude that the
Legislature intended that the same causation standard apply in a
restitution hearing that would apply in a parallel civil action. See,
e.g., Retherford v. AT&T Commc’ns of Mountain States, Inc., 844 P.2d
949, 970–71 (Utah 1992) (requiring a showing that “conduct
proximately caused [the plaintiff’s] emotional distress” to sustain an
intentional infliction of emotional distress claim); Reynolds v.
MacFarlane, 2014 UT App 57, ¶ 16, 322 P.3d 755 (“‘Damages . . .
may . . . be recovered only to the extent that [the plaintiff] proves
they were a proximate result’ of the nonconsensual touching.”
(alteration in original) (second omission in original) (citation
omitted)). The most compelling evidence springs from the provision
that converts a complete restitution order into an enforceable civil
judgment. See UTAH CODE § 77-38a-401. This means that even though
the restitution proceeding takes place as part of a criminal
_____________________________________________________________
8 The United States Supreme Court has also examined statutory
language that did not explicitly reference the type of causation
required and determined that Congress intended proximate cause.
For example, in a case involving securities fraud, the statute required
plaintiffs to prove that “the defendant’s misrepresentations ‘caused
the loss for which the plaintiff seeks to recover.’” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 345–46 (2005) (emphasis added) (citation
omitted). The court concluded that “the law[] require[d] that a
plaintiff prove that the defendant’s misrepresentation . . .
proximately caused the plaintiff’s economic loss.” Id. at 346. The
court came to this conclusion because of the “common-law roots of
the securities fraud action” and because it made the most sense
given the purpose of the statute, which was “to protect [investors]
against those economic losses that misrepresentations actually
cause.” Id. at 344–45.
14
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proceeding, the end result is a civil judgment that a victim is entitled
to enforce.
¶39 To accept the State’s reading of the CVRA, we would need
to conclude that the Legislature designed a system with dual tracks
to a civil judgment with each track offering the victim a different
causation standard. It is unlikely that the Legislature would have
created a framework where the burden to prove causation varied
depending on whether the victim proceeded in a criminal restitution
hearing or a civil trial. At the very least, it is unlikely that the
Legislature would have implemented such a system without
explicitly expressing that intent in the statute. In the absence of such
an expression of legislative intent, we opt for the reading that
harmonizes with the causation standard that would apply in an
analogous civil action: proximate cause.
¶40 We find further support for this reading in the CVRA’s
definition of “pecuniary damages.” “Pecuniary damages” are “all
demonstrable economic injury, whether or not yet incurred, which a
person could recover in a civil action . . . .” Id. § 77-38a-102(6) (2015).9
This also suggests that the Legislature did not intend to create a
separate track that would allow a victim to obtain a subset 10 of the
relief available in a civil case under a different causation standard.
¶41 The State offers several arguments to combat this
conclusion. First, the State argues that the Legislature’s use of the
term “all” in the phrase “all losses caused by defendant” requires the
imposition of but-for causation. (Quoting Id. § 77-38a-302(2)(a)). We
agree that the CVRA requires the court to consider all losses the
defendant causes, but that simply raises the question of what losses
_____________________________________________________________
9 The State notes that the Legislature amended the CVRA in
2016 to change the definition of “pecuniary damages” from “all
demonstrable economic injury, whether or not yet incurred, which a
person could recover in a civil action . . .”, id. § 77-38a-102(6) (2015),
to “all demonstrable economic injury, whether or not yet incurred,
including those which a person could recover in a civil action . . . ,” id.
§ 77-38a-102(6) (emphasis added). This change does not cause us to
doubt the conclusion that there is no textual basis to conclude that
the Legislature intended to enact a system with competing causation
standards.
10 Pain and suffering damages are not available in a restitution
hearing. UTAH CODE § 77-38a-102(6).
15
STATE v. OGDEN
Opinion of the Court
the defendant caused. In other words, “all” does not tell us whether
the Legislature intended proximate or but-for causation.
¶42 Second, the State points to our statement in State v. Laycock
that “proximate cause . . . [is] best left to civil litigation.” 2009 UT 53,
¶ 29, 214 P.3d 104. We were not asked in Laycock to consider the
CVRA’s causation standard. Rather, we were asked to examine if the
CVRA required a district court to order both complete and court-
ordered restitution. Id. ¶ 19. We concluded that the CVRA requires a
district court to “determine” complete restitution, but gives it
discretion with regard to the imposition of court-ordered restitution.
Id. ¶ 23. Along the analytical path, we remarked on a number of the
difficulties a sentencing court would face in trying to resolve issues
of causation and losses, most notably a lack of opportunity for
discovery that would allow a defendant to “raise issues of proximate
cause and comparative negligence by using depositions and
interrogatories to gather relevant information.” Id. ¶ 22. This caused
us to quote favorably the court of appeals’ observation that
“[m]atters of negligence, proximate cause and the amount of
resulting damages are best left to civil litigation.” Id. ¶ 29 (quoting
State v. Robinson, 860 P.2d 979, 983 (Utah Ct. App. 1993)). This
statement was dicta then and is dicta now. And although we
continue to agree that the civil arena appears to be a superior forum
to adjudicate those issues, that statement should not be read to
suggest that we had concluded the CVRA requires something other
than proximate causation. 11
_____________________________________________________________
11 In Laycock, we were less than clear on the question of whether
the CVRA requires the district court to turn its complete restitution
calculation into an order that the court clerk enters on the civil
judgment docket. We acknowledged “that ambiguity infects the
restitution statute’s grant of discretion to trial courts.” Laycock, 2009
UT 53, ¶ 23 n.2. We complained that in one section the CVRA states
that “the court may require a convicted defendant to make
restitution” and in another it provides that “the court shall order that
the defendant make restitution to victims.” Id. (emphases omitted)
(citation omitted). We also noted that the statute appears to allow the
court to determine if restitution is “appropriate or inappropriate.” Id.(citation omitted). And although we said that provision
“unambiguously cedes to trial courts the discretion to either award
or to decline to make an award so long as the court explains its
reasoning on the record,” id., we then appear to go out of our way to
(continued . . .)
16
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¶43 Third, the State argues that the application of proximate
cause does not comport with the purposes of the restitution statute
that we identified in Laycock: compensation, rehabilitation, and
deterrence. 2009 UT 53, ¶ 18. As an initial matter, reading statutory
language in light of perceived legislative purpose is a very tricky
species of argument. The plain language of the text provides the best
evidence of legislative intent. Attempts to read statutory language in
the light of a perceived purpose (or purposes) can distort our view of
the plain language. This is, in part, because the statutory text already
reflects the balance the Legislature has struck between competing
policies and purposes.
¶44 The State’s argument illustrates the challenge. The State
posits that “the more stringent a test of legal causation adopted, the
more these statutory purposes [of compensation and deterrence] are
inhibited.” That may be true, but the Legislature may have weighed
the purposes differently and concluded that proximate causation
best balanced compensation and deterrence with the ability for
rehabilitation. Or the Legislature may have been motivated by a
policy we did not manage to divine when we penned Laycock. And,
in this case, resorting to the CVRA’s perceived purposes does not
help us understand what the Legislature intended.
¶45 Fourth, the State argues that proximate cause would be
inappropriate because we have observed that “the foreseeability
aspect of proximate causation is frequently relaxed in the case of
intentional torts.” Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 51 n.3, 345
P.3d 619 (citation omitted). But this does not tell us what the
statutory language means. The fact that the “foreseeability aspect . . .
is frequently relaxed” should inform the district court’s application
of proximate cause principles on remand, not our decision on
_____________________________________________________________
limit our analysis to an award of court-ordered restitution, see, e.g.,
id. ¶ 23 (“Although [a] court must determine complete restitution, it
is not required to order a defendant to pay complete restitution as
part of the criminal sentence. . . . After determining complete
restitution, a district court judge may then order court-ordered
restitution as part of the criminal sentence based on facts that would
meet the same strict requirements as found in a civil setting.”). The
parties have not squarely presented this question to us, but we
would appreciate either the opportunity to address it or legislative
intervention to eliminate the CVRA’s ambiguity.
17
STATE v. OGDEN
Opinion of the Court
whether to apply a proximate cause standard at the outset. Id.
(citation omitted).
¶46 Fifth, the State argues for a standard other than proximate
cause based on our interpretation of two insurance contracts. In
National Farmers Union Property & Casualty Co. v. Western Casualty &
Surety Co., we considered a policy that excluded coverage for “bodily
injury or property damages arising out of any premises, other than
an insured premises, owned, rented, or controlled by any insured.”
577 P.2d 961, 962 (Utah 1978). We reasoned that “[a]s used in a
liability insurance policy, the words ‘arising out of’ are very broad,
general and comprehensive. They are commonly understood to
mean originating from, growing out of, or flowing from, and require
only that there be some causal relationship between the injury and
the risk for which coverage is provided.” Id. at 963; See also Viking
Ins. Co. of Wis. v. Coleman, 927 P.2d 661, 665 (Utah Ct. App. 1996)
(applying a causal nexus test similar to the modified but-for test the
court of appeals applied in restitution cases). Because we interpret
insurance policies broadly and in favor of the insured, our
interpretation of insurance policies carries little persuasive value to
help us understand this statutory language. See U.S. Fid. & Guar. Co.
v. Sandt, 854 P.2d 519, 522 (Utah 1993) (“[I]nsurance policies should
be strictly construed against the insurer and in favor of the
insured . . . .”).
¶47 Finally, the State argues that we need not definitively
resolve what the CVRA requires because the district court would
reach the same result regardless of what causation standard is
applied. We are not convinced that the outcome would have been
the same had the district court required a showing of proximate
cause. “For proximate cause to exist, the relationship between the
negligent act and the injury must be foreseeable.” Fordham v.
Oldroyd, 2007 UT 74, ¶ 30, 171 P.3d 411. Here, Ogden argued that
Victim’s losses were not foreseeable because “Ogden would not
reasonably foresee when he abused [Victim] that she would be again
sexually abused eight years later by a third party . . . .” We do not
opine on the foreseeability of Victim’s subsequent abuse, other than
to acknowledge that Ogden has a good faith argument that it was
not foreseeable. Thus, we rest our remand on the premise that
application of an erroneous standard may have had a material effect
and that Ogden is entitled to a proceeding conducted with the
proper causative test in clear focus.
¶48 Because we find that proximate cause is required to find that
a “criminal activity . . . has resulted in pecuniary damages” and had
18
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the district court applied this causation standard, the outcome may
have changed, we vacate and remand for further proceedings
consistent with this opinion. 12 See UTAH CODE § 77-38a-302(1).
II. On Remand, the District Court Should
Ensure That the Restitution Award Is Not
Based on Speculative Evidence
¶49 Although we vacate the district court’s restitution award
and remand, Ogden presents another question that will likely arise
again before the district court. Ogden argues that the district court
erred by including speculative damages in its restitution
calculation. 13 Although it is unnecessary to our decision, we retain
_____________________________________________________________
12 Our holding necessarily overrules the body of court of appeals
precedent applying a “modified but for” test. These cases include:
State v. Ruiz, 2016 UT App 18, ¶¶ 12–15, 366 P.3d 1230; State v.
Wadsworth, 2015 UT App 138, ¶ 10, 351 P.3d 826, rev’d on other
grounds, 2017 UT 20, 393 P.3d 338; State v. Ruiz, 2013 UT App 166,
¶ 8, 305 P.3d 223; State v. Poulsen, 2012 UT App 292, ¶¶ 11, 16, 288
P.3d 601; State v. Birkeland, 2011 UT App 227, ¶¶ 11–13, 258 P.3d 662;
State v. Johnson, 2009 UT App 382, ¶ 46, 224 P.3d 720; State v. Brown,
2009 UT App 285, ¶ 11, 221 P.3d 273; State v. Harvell, 2009 UT App
271, ¶¶ 12–14, 220 P.3d 174; and State v. McBride, 940 P.2d 539, 544
(Utah Ct. App. 1997). We overrule all of these cases and any others
that applied the “modified ‘but for’ test.” Brown, 2009 UT App 285,
¶ 11 (citation omitted).
13 Ogden raises another issue that we are almost tempted to
resolve. Ogden contends that the CVRA does not give the district
court the authority to dictate how he is to pay his court-ordered
restitution. In particular, Ogden argues that the district court
impermissibly ordered him to give Victim one-half of the equity in
his home and to modify his life insurance policies to give Victim a
greater share of the proceeds.
Utah Code section 77-38a-302(5)(c)(iv) authorizes the court to
consider, among other factors, “the ability of the defendant to pay
restitution on an installment basis or on other conditions to be fixed
by the court . . . .” Ogden claims that the language “on other
conditions” cannot be stretched far enough to permit a court to order
the sale of his home and the modification of his insurance policy.
And he relies on the court of appeals’ decision in State v. Schweitzer,
where the court held that the restitution statute “does not authorize
(continued . . .)
19
STATE v. OGDEN
Opinion of the Court
the authority to reach issues when we believe our analysis could
prove helpful on remand. 14 See State v. Low, 2008 UT 58, ¶ 61, 192
_____________________________________________________________
the trial court, upon imposing restitution, to also order the sale of [a]
defendant’s property to satisfy that restitution order. Rather, it
contemplates that the trial court’s role is limited to deciding, based
on the statutorily imposed factors . . . whether restitution is
appropriate and in what amount.” 943 P.2d 649, 653–54 (Utah Ct.
App. 1997).
We believe that Ogden has raised an interesting and important
issue. However, after the court of appeals decided Schweitzer, the
Legislature enacted Utah Code section 77-38a-601, which provides
that during a criminal proceeding, a prosecutor may “enter a
temporary restraining order, an injunction, or both; . . . require the
execution of a satisfactory performance bond; or . . . take any other
action to preserve the availability of property which may be
necessary to satisfy an anticipated restitution order.” Id.§ 77-38a-601(1). The court may take action as requested if the court
determines “there is probable cause to believe . . . that failure to enter
the order will likely result in the property being sold, distributed,
exhibited, destroyed, or removed from the jurisdiction of the court,
or otherwise be made unavailable for restitution . . . .” Id.
§ 77-38a-601(2)(a)(i).
Neither party has cited section 601, nor addressed the effect that
it may have on the court’s authority to impose “other conditions” on
the payment of restitution. Id. § 77-38a-302(5)(c)(iv). Because of this,
we do not think this appeal presents the appropriate vehicle for us to
opine on the scope and meaning of the phrase “on other conditions.”
But we do not intend our declination to reach the issue to be
construed as an endorsement of the district court’s resolution.
14We decline to exercise our discretion to address Ogden’s other
challenges to the district court’s order. We note, however, that part
of Ogden’s complaint concerns the district court’s failure to rule on a
number of the issues Ogden raised. Indeed, at the restitution
hearing, the district court stated that it would not decide an issue
because it was one that the “higher powers will have to rule on.”
Assuming, for the sake of argument, that this court is the “higher
powers” the district court referenced, we can understand the
impulse to not address questions that a district court believes will
ultimately be the subject of an appellate opinion. But the district
court robs this court, and our judicial system, of valuable insight
(continued . . .)
20
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P.3d 867 (When “there are other issues presented on appeal that will
likely arise [on remand],” we may “exercise our discretion to address
those issues for purposes of providing guidance on remand.”). The
issue we examine is whether the damages included in the complete
restitution award were speculative and therefore lacked a sufficient
evidentiary basis.
A. Speculative Damages
¶50 The district court’s complete restitution award totaled
$2,092,306—the projection of expected future life care plan costs the
Plan predicted, accounting for inflation over Victim’s lifetime. In the
restitution order, the district court found that “[e]ach of the
categories of figures from Dr. Corwin and Sheryl Wainwright are
necessary” for Victim. Ogden argues that several of these figures
were speculative and therefore lacked a sufficient evidentiary basis.
¶51 Restitution shall be awarded for pecuniary damages arising
out of a criminal defendant’s activity. UTAH CODE § 77-38a-302(1).
Pecuniary damages are
all demonstrable economic injury, whether or not yet
incurred, including those which a person could recover
in a civil action arising out of the facts or events
constituting the defendant’s criminal activities and
includes the fair market value of property taken,
destroyed, broken, or otherwise harmed, and losses,
including lost earnings, . . . and medical and other
expenses, but excludes punitive or exemplary damages
and pain and suffering.
Id. § 77-38a-102(6).
¶52 A trial court’s restitution award must rely on a sufficient
evidentiary basis. See State v. Weeks, 2002 UT 98, ¶ 26, 61 P.3d 1000.
“Although an award of damages based only on speculation cannot
be upheld, it is generally recognized that some degree of uncertainty
in the evidence of damages will not suffice to relieve a defendant
_____________________________________________________________
when it shrinks from its constitutional responsibility to answer the
questions put before it. District courts see far more cases with many
more variations than our appellate courts. This provides them with
unique insights into the questions presented. This court can consider
those insights when they become part of the record. Without them,
we lose an important window into what occurs below and our
decisions will be poorer because of it.
21
STATE v. OGDEN
Opinion of the Court
from recompensing a wronged plaintiff.” Bastian v. King, 661 P.2d
953, 956 (Utah 1983). “The amount of damages may be based upon
approximations,” however the approximations must be “based upon
reasonable assumptions or projections.” Atkin Wright & Miles v.
Mountain States Tel. & Tel. Co., 709 P.2d 330, 336 (Utah 1985).
¶53 “[T]he determination of [a] restitution amount is by nature
an inexact science,” and consequently “a reasonable estimate of the
loss” may be the only evidence available. United States v. Osman, 853
F.3d 1184, 1189 (11th Cir. 2017) (citation omitted) (internal quotation
marks omitted). However, evidence of the loss should bear
“sufficient indicia of reliability to support its probable accuracy.” Id.(citation omitted) (internal quotation marks omitted). “[B]allpark
figures . . . and purely speculative calculations” constitute
“insufficient information” for a district court to rely on in awarding
restitution. State v. Passwater, 350 P.3d 382, 385 (Mont. 2015) (citation
omitted). Rather, anticipated future expenses should be “firmly
established” in the record. See Lawrence v. State, 764 P.2d 318, 322
(Alaska Ct. App. 1988).
¶54 We acknowledge that it is impossible to avoid some
measure of uncertainty when a district court is asked to base an
award on damages a victim will suffer in the future. However, to
establish a sufficient evidentiary basis for a restitution award, a
district court should require the State (or the victim, in those cases
where the State decides not to appear) to demonstrate that the
expenses are necessary and that the amount needed to cover those
expenses is firmly established in the record. In light of these
clarifications, we express concern with aspects of the district court’s
restitution award.
¶55 The Plan allocated a portion of the lifetime care costs for
depression, anxiety, sleeping, and pain medications. Ogden argues
that this allocation was speculative because Ms. Wainwright “was
not a psychiatrist, had no medical diagnostic or prescribing ability,
and had no underlying data or ‘careful assessment’ that [Victim]
would need any of the specific medications recommended on the
chart.” We agree with Ogden that her opinion lacked “underlying
data or ‘careful assessment’” that Victim would actually need all the
medication the Plan contemplated.
¶56 The expert best positioned to opine on the medications
Victim would need—Dr. Corwin—neither recommended nor
prescribed any medication for her. Dr. Corwin testified at the
restitution hearing that to his knowledge, Victim was not taking any
type of medication. Ms. Wainwright was not qualified to diagnose
22
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psychological disorders or prescribe medication to treat them. She
based her conclusion in part on her experience “in case managing
[sexual abuse victims]” because “they need medication as they get
older.” She explained that to inform her recommendation, she “went
to the studies and the literature and there’s a couple of articles that
[she] cited in [her] report that talk about . . . therapy for people who
have suffered post-traumatic stress and child sex abuse. And they
recommend[] . . . Zoloft, . . . Paxil or . . . Prozac as the most effective
psychiatric treatment for clients who have suffered child sex abuse.”
Additionally, Ms. Wainwright recommended anxiety medication
because anxiety is “another common side effect for clients who have
suffered child sex abuse,” and because Victim already exhibited
“symptoms of depression, as she’s cutting herself . . . they’re all signs
of some sort of anxiety.”
¶57 Speaking again of her experience with her clients, Ms.
Wainwright explained that:
They all have sleep disorders. They have trouble
sleeping. So I put in Ambien. And then the pain
medications, because a lot of these clients, . . . probably
over 80 percent of the clients that I manage, are on
some sort of pain medications for the physical
symptoms that have manifested as a result of the
psychiatric condition.
The medications the Plan recommended “reflect [Ms. Wainwright’s]
experience of the types and costs of medications that frequently help
victims of sexual abuse,” and “the majority of [her clients] are on
these medications.”
¶58 Leaving aside the question of whether Ms. Wainwright
possessed the expertise to offer these opinions, her recommendations
were based exclusively on her assessment of her other clients, not on
an individual assessment of Victim’s specific needs. Although Victim
demonstrated clinically significant symptoms of depression and
post-traumatic stress disorder, she was not diagnosed with anxiety,
nor did she report trouble sleeping. Without a diagnosis and
recommendation for a particular medication from an individual
qualified to make that assessment, the inclusion of costs for those
medications crosses the line into impermissible speculation. To
establish a sufficient evidentiary basis for this portion of the
restitution award, Victim would need to present credible evidence
demonstrating her need for the medications.
23
STATE v. OGDEN
Opinion of the Court
¶59 The Plan also recommended inpatient and outpatient
counseling. This included the cost of ten inpatient hospitalizations,
ten intensive outpatient counseling programs, six courses of weekly
therapy sessions, one course of Eye Movement Desensitization and
Reprocessing (EMDR) treatment, and one neuropsychological
evaluation. Ogden argues that this recommendation was “not based
on [Victim’s] actual needs and amounts to nothing more than an
unfounded and speculative assertion about what [Victim’s] needs
might be.” (Emphasis omitted).
¶60 The Plan based part of its conclusion on Dr. Corwin’s
recommendation that Victim receive six courses of weekly therapy
sessions, each course lasting up to two years. In his forensic
evaluation, Dr. Corwin concluded that Victim would benefit from
therapy because she “suffered significant psychological trauma
caused by her father’s sexual abuse of her, the family disturbances
associated with that sexual abuse including being harassed by her
older brothers and living away from her family with various other
families,” which culminated in the subsequent sexual abuse by S.G.
Dr. Corwin explained that “[e]ffective treatment helps diminish
symptoms associated with lifelong increased emotional burdens and
memories.” The district court did not abuse its discretion by
including these costs in the complete restitution award.
¶61 But the Plan recommended more than what Dr. Corwin
opined would be necessary. Instead, Ms. Wainwright relied on
literature and her experience with other clients as a basis to include
other categories of psychological care in the Plan. Ms. Wainwright
explained:
[W]hen we do a life care plan, we’re kind of making
assumptions and looking into a crystal ball a little
bit. . . . I made assumptions based on the statistics that I
read in several articles talking about the long term
effects of child sex abuse and also in my experience . . .
case managing clients with [a history of] child sex
abuse.
¶62 Ms. Wainwright concluded it was “more likely than not”
that Victim would need inpatient hospitalizations because her clients
that have suffered from sexual abuse “end up in the hospital not just
for psychiatric issues but for medical issues.” In the Plan, she stated
that because Victim was not “in therapy at [the] time, and her
behavior is evidence that she does not have the strategies in place to
manage her symptoms, she will likely require multiple admissions
throughout her lifetime.” At the hearing she explained that many of
24
Cite as: 2018 UT 8Opinion of the Court
her clients, “especially women, tend to have eating disorders” and
“over fifty percent” of Ms. Wainwright’s clients “end up in the
hospital because they’ve got metabolic dysfunction because they’re
either bulimic or anorexic.” She explained that some of her clients
are hospitalized once every four to six weeks, and other clients are
hospitalized once or twice a year, and ultimately concluded that
Victim would likely need ten inpatient hospitalizations.
¶63 In other words, Ms. Wainwright recommended that Victim
participate in intensive outpatient programs because her other
clients “do well with intensive outpatient programs.” She conceded
there was “no guarantee” that Victim would need to participate in
an intensive outpatient program, but concluded it was “more likely
than not” that Victim would. However, when asked whether this
projection was “somewhat speculative,” Ms. Wainwright responded,
“Yes.” Ms. Wainwright allocated the cost of EMDR therapy because
it is “a recommended and accepted treatment protocol for clients
with PTSD.” Finally, she included the cost of a neuropsychological
evaluation “to determine the effects and any improvements that are
coming from treatment.”
¶64 Again leaving aside the question of Ms. Wainwright’s
qualifications to offer that opinion, Ms. Wainwright’s
recommendations appear to be based on speculation about what
treatments Victim may benefit from based on her other clients’
treatment plans. See Bastian, 661 P.2d at 956. Leaving aside the
therapy Dr. Corwin recommended, Ms. Wainwright provided no
evidence that Victim needed the treatment outlined in her
recommendations. In other words, record evidence supported the
inclusion of costs related to the treatment Dr. Corwin recommended.
But there is more than “some degree of uncertainty in the evidence”
with respect to those costs flowing from Ms. Wainwright’s
generalizations about what sexual abuse victims typically need. See
id.
¶65 On remand, Victim may be able to justify an award of the
items in Ms. Wainwright’s report. But to meet that burden, the State
or Victim will need to present evidence of her individual need for
inpatient hospitalizations, intensive outpatient programs, EMDR
therapy, and a neuropsychological evaluation. And although we
recognize that there will be some degree of uncertainty in predicting
needs decades into the future, to combat some of this uncertainty,
the district court should have before it an adequate foundation that
Victim will likely need these treatments.
25
STATE v. OGDEN
Opinion of the Court
CONCLUSION
¶66 The CVRA requires that a district court include the losses
that a defendant proximately causes in its complete restitution
determination. On remand, we remind the district court to ensure
that it rests its restitution calculation on non-speculative evidence of
losses that Victim has incurred or will likely incur. We vacate the
district court’s restitution orders and remand for further proceedings
consistent with this opinion.
26