State v. Murray , 2023 UT App 52 ( 2023 )

2023 UT App 52THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CODY BLAIR MURRAY,
Appellant.
Opinion
No. 20200890-CA
Filed May 18, 2023
Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 191902454
Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant
Sean D. Reyes and William M. Hains,
Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
TENNEY, Judge:
¶1 After Cody Murray pleaded guilty to violating a protective
order, the district court ordered him to pay the victim’s moving
expenses and 12 weeks of lost wages as restitution. Murray now
appeals that restitution order, arguing that his criminal conduct
did not proximately cause either of those losses. On the moving
expenses, we agree with Murray and reverse that portion of the
order. On the lost wages, however, we conclude that there was
sufficient evidence to link Murray’s criminal conduct to the
claimed loss. We accordingly affirm that portion of the order.
State v. Murray
BACKGROUND
¶2 Murray married C.M. in March 2018, and they lived
together throughout their short marriage. On January 2 or 3, 2019,
C.M. filed a report with law enforcement alleging that Murray
had engaged in sexual intercourse with her without her consent
while she was medicated and sleeping. On the same day that she
filed this report, C.M. obtained a temporary protective order
against Murray based on this same allegation.
¶3 On January 3, 2019, law enforcement served Murray with
the protective order at the residence he shared with C.M., and
Murray complied with the order by packing his belongings and
leaving the residence. Within an hour of leaving, however,
Murray asked a friend to contact C.M. on his behalf. As
subsequently alleged in a probable cause affidavit, C.M. soon
received “phone calls and text messages” from the friend’s phone
in which the friend relayed messages that Murray “loved her”
and “missed her.” As also alleged, while the friend was on the
phone speaking to C.M., Murray “passed a paper note” to the
friend asking him “to let C.M. know that [Murray] was scared.”
C.M. reported these communications to law enforcement as a
violation of the protective order.
¶4 The State later filed two cases against Murray. The two
cases were filed separately and were not consolidated. In the first
case, the State charged Murray with one count of rape. That
charge was based on C.M.’s allegation that Murray had sexual
intercourse with her without her consent while she was sleeping.
That case was later dismissed.
¶5 In the second case, which is the case at issue in this appeal,
the State charged Murray with one count of violating a protective
order. See Utah Code § 76-5-108 (2018). This charge was based on
Murray’s indirect communications with C.M. on January 3, 2019.
In March 2020, Murray pleaded guilty to the charged offense. As
20200890-CA 2 2023 UT App 52State v. Murray
a result of a plea deal, the charge was reduced from a class A
misdemeanor to a class B misdemeanor. In his affidavit in support
of the plea, Murray admitted that “[o]n or about January 3, 2019,”
he “knowingly and intentionally communicate[d] with C.M.
through a mutual friend . . . through phone calls and text
messages.” Murray also agreed that he “may be ordered to make
restitution to any victims of [his] crimes.”
¶6 Murray agreed to be sentenced at that same hearing.
During the sentencing portion of the hearing, C.M.’s attorney
asked the court to leave open C.M.’s restitution claim for the “one
year statutory time limit,” informing the court that she would
“submit any restitution” after receiving further documentation.
The court left C.M.’s restitution claim open as requested.
¶7 In July 2020, the Utah Office of Victims of Crime (UOVC)
filed a motion for restitution, asserting that it had paid C.M. a total
of $6,264.47.1 Of that amount, $5,520.28 was designated as
reimbursement for “[l]oss of wages” and $744.19 was designated
as reimbursement for “[r]elocation.”
¶8 Murray objected to UOVC’s motion for restitution and
requested a hearing. At that hearing, UOVC’s attorney called two
witnesses: (1) a representative from UOVC (Representative) and
(2) C.M.
¶9 Representative testified that UOVC received C.M.’s
application for restitution in November 2019. Representative
testified that C.M. listed both the protective order violation and
the alleged rape as the bases for her restitution claim.
Representative further noted that in reviewing C.M.’s restitution
claim, “the reparations officer indicated that the claim was
approved based on both incidents”—the alleged rape and the
1. UOVC was represented by an attorney from the Utah Attorney
General’s office who serves as “agency counsel” for UOVC.
20200890-CA 3 2023 UT App 52State v. Murray
protective order violation—because “they were so close together”
that “the reparations officer couldn’t separate them into two
separate claims.”
¶10 Representative testified that UOVC ultimately approved
and paid C.M.’s expenses for “loss of wages” in the amount of
$5,520.28, as well as “relocation” or moving expenses in the
amount of $744.19, thus totaling $6,264.47. With respect to the lost
wages claim, Representative testified that UOVC received a
document from C.M.’s employer that explained “how much
[C.M.] made at the time and how long she was out of work.”
Representative said that UOVC also received a “health provider
statement” that corroborated that C.M. missed work.
Representative further said that from these documents and other
verification efforts with C.M.’s employer, UOVC determined that
C.M. missed “over 68 days” of work, and that it had then paid “12
weeks of lost wages” for the work C.M. missed from “January 3rd
of 2019 through March 15th of 2020” at “[s]ixty-six percent of the
full-time salary,” which in C.M.’s case amounted to $5,520.28.
¶11 With respect to the moving expenses, Representative
testified that UOVC paid C.M. $744.19 to cover “reimbursement
for movers.” Representative said that C.M. told UOVC that she
had moved because “she didn’t feel comfortable in having
[Murray] know where she lived.”
¶12 UOVC’s attorney then called C.M., who testified that she
obtained the protective order against Murray because of the
“actions he was making to [her] in [her] sleep.” C.M. also
provided and referred to a note from a doctor indicating that C.M.
had been seen because “[f]or the duration of her marriage her
husband was sexually assaulting her in her sleep,” “[s]he was
experiencing UTIs on many occasions from the sexual abuse,” and
she had “[m]ajor depressive disorder” and “post-traumatic stress
disorder.”
20200890-CA 4 2023 UT App 52State v. Murray
¶13 During C.M.’s testimony, UOVC’s attorney asked, “[A]s a
result of the violation of the protective order, can you tell us what
effect the violation of the protective order, the conduct that the
defendant caused—what happened to you as a result?” C.M.
responded that she suffered “severe panic attacks” and
flashbacks, “live[d] in fear nearly every day,” felt a “[l]oss of trust
of people in general,” and had “a hard time concentrating or
focusing.” She said she had “severe depression” and was simply
not “able to function like [she had] always been able to.”
¶14 UOVC’s attorney then asked if Murray’s conduct “in
December or January of 2018, ’19 . . . interfere[d] with [her] ability
to interact with people,” to which C.M. responded, “Definitely.”
C.M. testified that because these issues “interfere[d] with [her]
ability to work,” there were times where she had to take leave
from work. She testified that the “very first time” she “took leave
was for a doctor’s appointment . . . back in December of 2018” and
that she was out of work periodically after that, thus agreeing
with the suggestion from the attorney that she missed work
“every few days, a couple hours here, a few hours there, a full day
here, a few days there” until March 2020, when she was “out of
work altogether and couldn’t work at all.” UOVC’s attorney
asked if C.M.’s requests to take leave from work starting in
“December of 2018” were “related to [Murray’s] conduct . . . that
was occurring at that time,” and C.M. responded, “It was.”
¶15 With respect to the moving expenses, C.M. testified that
she moved from the home she’d shared with Murray because the
divorce decree ordered her to sell it. C.M. said that she moved in
May 2020—17 months after Murray violated the protective
order—and that her restitution request was based on the movers
she had hired to assist with that move.
¶16 Murray didn’t call any witnesses at the restitution hearing.
Instead, after UOVC’s attorney rested, each side presented closing
arguments. UOVC’s attorney asked the court to order restitution
20200890-CA 5 2023 UT App 52State v. Murray
for lost wages because C.M. had to take leave from work “[a]s a
result of [Murray’s] conduct . . . because she wasn’t able to fully
perform the job.” UOVC’s attorney asked for restitution for
moving expenses because “it was [Murray’s] conduct which
caused” C.M. to move and she “had reason to hide her
whereabouts from” Murray out of fear.
¶17 Murray, however, argued that under the restitution
statute, “restitution has to be tied directly” to the offense for
which he’d been convicted—which, here, was a class B
misdemeanor violation of a protective order. In Murray’s view,
restitution for the lost wages was not appropriate because C.M.
“missing all of [that] work . . . [could not] be tied” to his violation
of the protective order (as opposed to the underlying rape
allegation that the protective order was based on). Murray also
argued that the moving expenses could not be tied to this
conviction because C.M.’s decision to move was based on an
order from the divorce decree requiring C.M. and Murray to sell
the house.
¶18 At the close of arguments, the court ordered restitution in
the amount of $6,264.47 to cover lost wages and moving expenses.
In its oral ruling, the court noted that Murray was “alleged to have
committed sexual offenses against [C.M.] in her sleep” in the latter
part of 2018. The court said that it would “take the testimony of
the witness at face value with regard to what she felt was a
violation that caused the fear,” and the court then found that
Murray’s “past history” of “sexual[ly] assaulting” C.M. “in her
sleep” caused her “fear” and “anxiety.” With respect to C.M.’s
missed work, the court found that “whatever happened, certainly
enhanced or contributed to [C.M.’s] anxiety, depression, [and]
fear,” and that “after the circumstances giving rise to whatever
happened in December, there was a definite downturn with
regard to [C.M.’s] ability . . . to work.” And with respect to the
moving expenses, the court found that the “moving expenses
[were] also reasonable and arising out of the crime that occurred.”
20200890-CA 6 2023 UT App 52State v. Murray
¶19 Murray objected to the court’s ruling. Murray argued that
the court could “only tie restitution to what [Murray] was
convicted of or pled guilty to, which would be the violation of the
protective order,” and he further argued that the court should not
“consider any of the alleged sexual misconduct” in its
determination of restitution. In response, the court referred to the
document submitted by C.M. in her restitution application, noting
that “for the duration of the marriage, [Murray] was sexually
assaulting [C.M.] in her sleep” and that she “was experiencing
UTIs on many occasions from the sexual abuse.” The court
observed that C.M. suffered from depression and post-traumatic
stress as a result. Of note, the court then wondered whether these
conditions were “exacerbated . . . or caused by a violation of a
protective order,” “especially the loss of work after his
commission of the violation of the protective order.” (Emphasis
added.)
¶20 In a subsequent written restitution order, the court ordered
Murray to pay UOVC a total of $6,264.47 for lost wages and
moving expenses. In its Findings of Fact, the court found that C.M.
“suffered emotional trauma as a result of [Murray’s] conduct in
this case” and that her “fear, anxiety, and depression . . . rendered
[her] unable to perform her duties and required her to miss
work.” The court found that the trauma C.M. suffered “also
caused her to relocate because she feared [Murray] and didn’t
want him to know where she lived.” Murray filed a timely notice
of appeal from that judgment.2
2. In between the court’s oral and written rulings, Murray filed a
motion to reconsider. But after the written ruling was entered,
Murray filed a timely notice of appeal. Despite the fact that this
notice of appeal had been filed, and over an objection from UOVC,
the district court subsequently held oral argument on Murray’s
motion to reconsider, after which it denied the motion.
(continued…)
20200890-CA 7 2023 UT App 52State v. Murray
ISSUE AND STANDARDS OF REVIEW
¶21 Murray argues that the district court improperly ordered
restitution for C.M.’s lost wages and moving expenses. “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. Calata, 2022 UT App 127, ¶ 12, 521 P.3d 920(quotation simplified), cert. denied, 525 P.3d 1268 (Utah 2023). “To
the extent that the district court made legal determinations in
connection with its restitution analysis, we review those legal
determinations for correctness.” State v. Oliver, 2018 UT App 101,
¶ 15, 427 P.3d 495 (quotation simplified). But when “a defendant
argues that the evidence was insufficient to support a restitution
order, the defendant must demonstrate that the clear weight of
On appeal, both parties now agree that Murray’s notice of
appeal divested the district court of jurisdiction to rule on the
motion to reconsider. We agree with the parties. Because the
motion to reconsider was filed before the written ruling, it was a
prejudgment motion to reconsider the oral ruling. While the court
was “free to consider” what was essentially a request for
“reargument” at “any time before entering the final judgment,”
Gillett v. Price, 2006 UT 24, ¶ 7 n.2, 135 P.3d 861, the court did not
do so. Instead, it issued the written final judgment. When Murray
then filed his notice of appeal after that final judgment had been
entered, his notice of appeal “divest[ed] the district court of
jurisdiction.” Garver v. Rosenberg, 2014 UT 42, ¶ 11, 347 P.3d 380.
Of note, our supreme court has held that a prejudgment motion
to reconsider does “not toll the time for appeal once a final
judgment [is] entered.” Gillett, 2006 UT 24, ¶ 7 n.2. We likewise
see no basis for holding that a prejudgment motion to reconsider
would somehow undermine the finality of a written final
judgment or allow the court to retain jurisdiction after a notice of
appeal has been filed. As a result, we agree with the parties that
the only ruling properly before us is the original restitution order.
20200890-CA 8 2023 UT App 52State v. Murray
the evidence contradicts the court’s ruling.” State v. Chadwick, 2021
UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).
ANALYSIS
¶22 The Crime Victims Restitution Act (the CVRA) requires the
district court “to determine restitution for any pecuniary damages
proximately caused by the defendant’s criminal conduct.” State v.
Blake, 2022 UT App 104, ¶ 9, 517 P.3d 414. Here, Murray
challenges the court’s decision ordering him to pay C.M.’s
moving expenses and her lost wages. In Murray’s view, his
criminal conduct did not proximately cause either loss.
¶23 We first quickly dispense with the moving expenses issue.
Murray argues that “[n]o evidence tied C.M.’s move from the
marital home” to his criminal conduct, but that “the evidence on
the record was that C.M. had to move because of the divorce
decree.” Based on this, Murray argues that there was no basis for
requiring him to pay these expenses as part of restitution. In its
responsive brief, the State concedes this point. Having reviewed
the record, we conclude that Murray’s argument and the State’s
concession are well taken. We accordingly reverse that portion of
the restitution order.
¶24 The remaining and principal issue on appeal, then, is
whether the court also erred in ordering Murray to pay C.M.’s lost
wages. On this, Murray argues that the court erred in two key
respects: (I) by taking into account the alleged rape and (II) by
then determining that Murray’s criminal conduct proximately
caused C.M. to miss work. We address each argument in turn.
I. Alleged Rape
¶25 Murray argues that the district court improperly based the
restitution order for lost wages on C.M.’s rape allegation, rather
20200890-CA 9 2023 UT App 52State v. Murray
than limiting itself to considering the sole offense to which he had
pleaded guilty: violating a protective order. We see no legal error
in the court’s decision.
¶26 As a general rule, we “apply the law in effect at the time of
the occurrence regulated by that law.” State v. Wilkerson, 2020 UT
App 160, ¶ 24, 478 P.3d 1048 (quotation simplified). The version
of the restitution statute in effect at the time of Murray’s
sentencing provided that
[w]hen a defendant enters into a plea disposition or
is convicted of criminal activity that has resulted in
pecuniary damages, . . . the court shall order that the
defendant make restitution to victims of crime as
provided in this chapter, or for conduct for which
the defendant has agreed to make restitution as part
of a plea disposition.
Utah Code § 77-38a-302(1) (2019); see also id. § 77-38a-302(5)(a)
(2019) (“For the purpose of determining restitution for an offense,
the offense shall include any criminal conduct admitted by the
defendant to the sentencing court or for which the defendant
agrees to pay restitution.”).3 Under these statutes, Murray
therefore could not “be ordered to pay restitution for criminal
activities for which he did not admit responsibility, was not
convicted, or did not agree to pay restitution.” State v. Randall,
2019 UT App 120, ¶ 13, 447 P.3d 1232 (quotation simplified).
3. The legislature recently amended the CVRA. The most recent
version of the statute provides that the “court shall order a
defendant, as part of the sentence imposed,” to “pay restitution to
all victims: (i) in accordance with the terms of any plea agreement
in the case; or (ii) for the entire amount of pecuniary damages that
are proximately caused to each victim by the criminal conduct of
the defendant.” Utah Code § 77-38b-205(1)(a) (2023).
20200890-CA 10 2023 UT App 52State v. Murray
¶27 It’s true that Murray was not convicted of raping C.M. As
noted, the separate criminal case that was based on the rape
allegation was dismissed. It’s also true that Murray did not admit
to raping C.M. in this case either. But contrary to Murray’s
arguments, this doesn’t mean that his alleged sexual misconduct
against C.M. could play no role in the court’s restitution analysis.
¶28 Again, Murray pleaded guilty to violating a protective
order, and the elements of that offense were that Murray was
“subject to a protective order” and “intentionally or knowingly
violate[d] that order after having been properly served or having
been present . . . when the order was issued.” Utah Code § 76-5-
108(1) (2018). In his plea agreement, Murray acknowledged these
elements and agreed that he had “committed the crime.” In the
factual basis portion of the plea agreement, Murray further
agreed that he had “knowingly and intentionally communicate[d]
with C.M. through a mutual friend . . . through phone calls and
text messages.” Pulling this together, the criminal activity for
which Murray was convicted (by way of plea) included these key
pieces:
• Murray was subject to a protective order;
• Murray intentionally or knowingly violated the protective
order; and
• Murray did so by knowingly and intentionally
communicating with C.M. through a mutual friend
through phone calls and text messages.
¶29 Once Murray was convicted of this offense, the district
court could then order restitution for any damages that were
“proximately caused” by that offense. State v. Ogden, 2018 UT 8,
20200890-CA 11 2023 UT App 52State v. Murray
¶¶ 31–48, 416 P.3d 1132.4 Our supreme court has explained that
restitution is intended “to compensate the victim for pecuniary
damages,” as well as “to rehabilitate and deter the defendant, and
others, from future illegal behavior.” State v. Laycock, 2009 UT 53,
¶ 18, 214 P.3d 104. Because the question before a restitution court
is what damages were proximately caused by the offense, the
court isn’t confined to just the narrow elements of the offense of
conviction. Rather, while the “restitution statute requires that
responsibility for the criminal conduct be firmly established,
much like a guilty plea, before the court can order restitution,” “it
is only the initial crime for which liability must be legally certain.”
State v. Hight, 2008 UT App 118, ¶¶ 3, 5, 182 P.3d 922 (quotation
simplified). Once guilt for the offense has been firmly established,
the court then has “broad discretion, after reviewing the evidence
presented at the restitution hearing,” to “order restitution for any
pecuniary damages clearly resulting from” that offense. Id. ¶ 5
(quotation simplified). In other words, once the defendant is
convicted of “criminal conduct,” the defendant can “be held
responsible for all damages proximately caused by that conduct.”
State v. Huffman, 2021 UT App 125, ¶ 9, 501 P.3d 564 (emphasis in
original), cert. denied, 509 P.3d 198 (Utah 2022).
¶30 Our decision in Huffman is illustrative. There, the
defendant pleaded guilty to possessing drugs. Id. ¶ 7. Although
the offense of drug possession doesn’t include, as an element, the
destruction of property, we held that it was appropriate for the
4. The version of the statute that governed at the time of Murray’s
sentencing did not expressly state that restitution could be
awarded for damages “proximately caused” by the offense, see
Utah Code § 77-38a-302(1) (2019), but our supreme court had
interpreted that statute as containing such an allowance, see State
v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132. The statute has since
been amended to expressly incorporate the proximate cause
standard. See Utah Code § 77-38b-205(1)(a)(ii) (2023).
20200890-CA 12 2023 UT App 52State v. Murray
court to order restitution for damage that was done to the victim’s
motorhome. This was so because evidence before the court
established that the defendant’s possession of drugs inside the
motorhome proximately caused those damages. Id. ¶¶ 12–14.
¶31 A similar dynamic is in play here. Again, Murray pleaded
guilty to violating a protective order. In doing so, he
acknowledged both the existence of the protective order and that
he had violated its terms. Once these things were firmly
established through the guilty plea, the court then had broad
discretion to order restitution for any damage that was
proximately caused by Murray’s criminal conduct.
¶32 When making that proximate cause determination, the
court had at least some latitude to consider the conduct that had
led to the protective order, and this is largely so because of the
nature of the offense. After all, Murray wasn’t convicted of a crime
because he contacted a stranger with whom he had no prior
history. Rather, Murray was convicted of intentionally or
knowingly contacting a person who had obtained a protective
order against him. In this key sense, it was the protective order
that made Murray’s communications criminal.
¶33 A protective order acts as a “mechanism” for giving
victims a measure of “protection against their abusers.” State v.
Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645; see also State v. Baize,
2019 UT App 202, ¶ 20 n.5, 456 P.3d 770. One of the principal ways
that a protective order does this is by creating a legal barrier
between the victim and the abuser. If a person who is subject to a
protective order subsequently breaches that barrier, a court
couldn’t realistically be expected to decide whether the victim
was traumatized by the violative act by considering that act as if
it had occurred in a vacuum. Given that the victim had previously
obtained judicial protection from the person, the nature of the
alleged prior conduct would very likely have some bearing on the
interconnected questions of whether and why the illegal contact
20200890-CA 13 2023 UT App 52State v. Murray
had proximately caused any trauma or harm to the victim (not to
mention how much damage the victim had actually suffered).
¶34 In short, because Murray pleaded guilty to violating a
protective order, the district court could consider the fact that
C.M. had obtained a protective order against him as part of its
restitution analysis. And from there, it then had discretion to
consider the conduct that led to the issuance of the protective
order, at least to the extent that such conduct could inform its
decision about whether Murray’s actions proximately caused any
harm to C.M.
II. Proximate Cause
¶35 Murray next argues that the evidence before the
district court was insufficient to show that his criminal
conduct proximately caused C.M. to miss 12 weeks of work. We
disagree.
¶36 The “proximate cause standard requires a showing that the
crime, in a natural and continuous sequence, unbroken by any
new cause, produced the injury and that the injury would not
have occurred absent the crime.” Blake, 2022 UT App 104, ¶ 9
(quotation simplified). The “burden is on the State to prove
proximate cause,” State v. Morrison, 2019 UT App 51, ¶ 13, 440
P.3d 942, and this “requires proof of two elements: (1) but-for
causation and (2) foreseeable harm,” State v. Watson, 2021 UT App
37, ¶ 15, 485 P.3d 946.
¶37 Proximate cause is generally a “fact question[] to be
resolved by the fact finder.” State v. Barzee, 2007 UT 95, ¶ 81, 177
P.3d 48; see also Mackay v. 7-Eleven Sales Corp., 2000 UT 15, ¶ 7, 995
P.2d 1233 (noting that proximate cause is a fact question).
Because of this, we review a district court’s finding of
proximate cause for clear error. State v. Grant, 2021 UT App 104,
¶¶ 24, 35, 499 P.3d 176, cert. denied, 505 P.3d 56 (Utah 2022).
20200890-CA 14 2023 UT App 52State v. Murray
Thus, when “a defendant argues that the evidence was
insufficient to support a restitution order, the defendant must
demonstrate that the clear weight of the evidence contradicts the
court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90(quotation simplified).
¶38 Here, we see no clear error in the court’s finding that
Murray’s violation of the protective order proximately caused
C.M. to miss 12 weeks of work.
¶39 At the restitution hearing, C.M. testified that she obtained
the protective order because of “actions [Murray] was making to
[her] in [her] sleep” that began “at the end of December of 2018.”
She further agreed that this “conduct” was “the reason for the
ongoing protective order.” Of note, C.M. then testified that, “as a
result of the violation of the protective order,” she has “severe panic
attacks,” “severe depression,” and flashbacks; that she “live[s] in
fear nearly every day”; that she has a “[l]oss of trust in people”
generally; that she has a “hard time concentrating or focusing”;
and that she was unable “to function like [she has] always been
able to.” (Emphasis added.) When C.M. was then asked whether
“the problems” that she was having “interfere[d] with [her] ability
to work,” she responded, “Definitely.” While she said that the
“very first time” she “took leave was for a doctor’s
appointment . . . back in December of 2018” (which would have
predated Murray’s violation of the protective order), C.M. also
agreed that she missed work “every few days, a couple hours
here, a few hours there, a full day here, a few days there” until
March 2020, when she was “out of work altogether and couldn’t
work at all.” The district court determined that C.M.’s testimony
was credible, and on appeal, we give deference to that credibility
determination. See State v. Miles, 2020 UT App 120, ¶ 34, 472 P.3d
978 (noting that “because of the district court’s advantaged
position in observing the witnesses firsthand, we defer to its
credibility findings” (quotation simplified)); State v. Taylor, 2017
UT App 89, ¶ 10, 402 P.3d 790 (noting that “we accord deference
20200890-CA 15 2023 UT App 52State v. Murray
to the trial court’s ability and opportunity to evaluate credibility
and demeanor” (quotation simplified)).
¶40 As also noted, UOVC introduced evidence showing that
C.M. missed “over 68 days” of work, and UOVC’s Representative
testified that UOVC paid for 12 weeks of work that she missed
“span[ning] from January 3rd of 2019 through March 15th of
2020” because that missed work was “related to the incident in
this particular case, which is the violation of a protective order.”
When coupled with C.M.’s testimony about the effects of the
protective order violation itself on her psyche and her ability to
function, this provided an evidentiary basis for the court to find
that Murray’s criminal conduct proximately caused C.M. to miss
this work.
¶41 Murray nevertheless pushes back on several fronts, none
of which are availing.
¶42 First, Murray points to testimony showing that C.M. was
traumatized by the alleged rape (as opposed to the protective
order violation), as well as testimony establishing that C.M. began
missing work even before the unlawful communication. Both
things are, on this record, unquestionably true. But even if the
alleged rape caused psychological trauma to C.M. on its own, and
even if that trauma caused her to miss work (either before or even
after January 3, 2019), this doesn’t mean that Murray’s violation
of the protective order couldn’t proximately cause her to miss
work too.
¶43 Again, if there was sufficient evidence to establish that
C.M.’s losses were proximately caused by the communication,
then those losses were compensable. The fact that the losses may
have been linked to some other causal source does not change
this. In civil cases, it has long been recognized that there can be
multiple causes for an injury or a trauma. See, e.g., McCorvey v.
Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993) (confirming
20200890-CA 16 2023 UT App 52State v. Murray
“there can be more than one proximate cause” of “an injury”);
Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 486 (Utah Ct. App.
1991) (“There can be more than one proximate cause of an injury
so long as each is a concurrent contributing factor in causing the
injury.” (quotation simplified)). And this is true in a criminal case
too. See, e.g., State v. Gonzales, 2002 UT App 256, ¶ 21, 56 P.3d 969(“A defendant’s acts may be found to be the proximate cause of
the victim’s death even if the victim actually died as a result of the
combination of the defendant’s acts plus some other contributing
factor.” (quotation simplified)).5
¶44 Here, we agree with Murray that C.M.’s trauma and
associated anxiety from the violation of the protective order was
likely linked in some measure to the alleged rape. As discussed
above, however, the alleged rape was the very reason that C.M.
had previously obtained a protective order against Murray. And
as also discussed, C.M.’s testimony at the restitution hearing
supported the conclusion that when Murray contacted her in
violation of that order, this both exacerbated her prior trauma and
caused additional trauma too, thereby further interfering with her
ability to work. Given this sworn and court-credited testimony,
we cannot conclude that it was against the clear weight of the
evidence for the court to conclude that, even accounting for the
trauma associated with the alleged rape, the violation of the
protective order itself proximately caused C.M. to miss work.
¶45 Second, Murray argues that it could not have been
“reasonably foreseeable that C.M. would miss 12 weeks of work”
because he sent her “a single indirect text message.” As an initial
matter, it’s unclear from the record if this case really does involve
5. Something somewhat similar can be true outside the proximate
cause context too. In State v. O’Bannon, 2012 UT App 71, ¶ 38, 274
P.3d 992, for example, we recognized “a basis under Utah law for
holding a defendant culpable for causing death even when other
factors contributed to the victim’s death.”
20200890-CA 17 2023 UT App 52State v. Murray
just a single text message. For “the purpose of determining
restitution for an offense, the offense shall include any
criminal conduct admitted by the defendant to the sentencing
court or for which the defendant agrees to pay restitution.” Utah
Code § 77-38a-302(5)(a) (2019). Here, the probable cause affidavit
alleged that C.M. had “received phone calls and text messages”
from Murray through their mutual friend. And in his plea
affidavit, Murray agreed under oath that he “knowingly and
intentionally communicate[d] with C.M. through a mutual friend
. . . through phone calls and text messages.” On this record, the
court could therefore assess the restitution question in light of
Murray’s admission that there had been multiple
communications.
¶46 In any event, whether viewed as multiple communications
or even just a single communication, this argument still fails
because the effect of the communication(s) can’t meaningfully be
divorced from the surrounding context. Again, Murray
wasn’t convicted of sending a message to a stranger with whom
he had no prior history. Rather, Murray was convicted because he
knowingly or intentionally communicated with C.M. in violation
of a protective order. By communicating with C.M. despite
the existence of an order from a judge that prohibited him
from contacting her, Murray undermined the sense of distance
and security that the protective order was intended to give her.
Because of this context and history, we disagree with
Murray’s assertion that it could not have been reasonably
foreseeable that C.M. would be traumatized and miss work as a
result.
¶47 Finally, Murray argues that the restitution order was at
odds with our decision in State v. Bickley, 2002 UT App 342, 60
P.3d 582. We disagree. In Bickley, the defendant was charged with
criminal nonsupport, and the “Amended Information listed the
nonpayment period from February 1, 1997 to January 10, 2000.”
Id. ¶ 3. After the defendant pleaded guilty to this offense,
20200890-CA 18 2023 UT App 52State v. Murray
however, the district court awarded restitution for arrears that
occurred prior to 1997. Id. ¶¶ 3–4. We reversed that decision on
appeal, concluding that the court could not impose restitution for
pre-1997 arrears “without making inferences.” Id. ¶ 12 (quotation
simplified). Because of this, we held that it was not “firmly
established” that the defendant was in fact responsible for the pre-
1997 arrears. Id.
¶48 Bickley is readily distinguishable. The arrears at issue in
Bickley plainly fell outside the conviction (which, again, was
specifically limited to arrears that occurred from February 1997
on). As discussed above, however, the offense at issue here was
the violation of a protective order, and that protective order was
by definition linked to some prior conduct. Thus, unlike Bickley,
it’s not at all clear that this restitution order was based on
damages that fell outside of the offense at issue. In addition,
there’s no suggestion that the district court in Bickley based its
restitution award for the pre-1997 arrears on any evidence or
testimony. Id. ¶¶ 2–4, 12. This is why we faulted the court for
“making inferences” and imposing restitution for arrears that
were not “firmly established.” Id. ¶ 12 (quotation simplified). But
again, this was not the case here, where the restitution order was
based on sworn testimony from the hearing itself.
¶49 In short, we can overturn the court’s proximate cause
determination only if Murray has established “that the clear
weight of the evidence contradicts the court’s ruling.” Chadwick,
2021 UT App 40, ¶ 6 (quotation simplified). Having reviewed the
record, we conclude that C.M.’s testimony about the effects of the
protective order violation on her psyche and her ability to
function, coupled with the evidence presented by UOVC about
the days that she missed at work, was sufficient to support the
court’s finding that Murray’s criminal conduct proximately
caused C.M. to miss this work, thereby causing these damages.
Because the court’s ruling was not against the clear weight of the
evidence before it, we affirm that determination.
20200890-CA 19 2023 UT App 52State v. Murray
CONCLUSION
¶50 The district court erred when it required Murray to pay
$744.19 in restitution for moving expenses. We accordingly vacate
that portion of the court’s order. But the court did not err when it
ordered restitution in the amount of $5,520.28 for lost wages. We
accordingly affirm the restitution award of $5,520.28 for lost
wages.
20200890-CA 20 2023 UT App 52