State v. Mercer

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CASSANDRA LOREE MERCER, Appellant.

No. 1 CA-CR 14-0285
FILED 1-29-2015

Appeal from the Superior Court in Navajo County
No. S0900CR201300101
The Honorable John N. Lamb, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Emery K. La Barge, Attorney at Law, Snowflake
By Emery K. La Barge
Counsel for Appellant
 STATE v. MERCER
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.

W I N T H R O P, Judge:

¶1 A jury convicted Cassandra Loree Mercer (“Appellant”) of
one count of fraudulent schemes and artifices, and the trial court placed her
on probation and ordered her to pay $30,000 restitution to the victim of her
crime. On appeal, Appellant argues the court erred in denying her request
for a separate restitution hearing and in entering a restitution order in the
full amount requested. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 On February 12, 2013, a Navajo County grand jury issued an
indictment, charging Appellant with one count of fraudulent schemes and
artifices, a class two felony, in violation of Arizona Revised Statutes
(“A.R.S.”) section 13-2310.2 The indictment contained the allegation that,
“[o]n or about between February 1st, 2012 and May 30, 2012,” Appellant
had, “pursuant to a scheme or artifice to defraud, knowingly obtained any
benefit by means of false or fraudulent pretenses, representations, promises
or material omissions.”

¶3 At trial, the State presented the following evidence: The
victim was born in 1993. When the victim was very young, his mother died.
A resultant medical malpractice lawsuit led to a settlement in which a trust

1 In general, we view the facts in the light most favorable to sustaining
the verdict, and we resolve all reasonable inferences against Appellant. See
State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). Similarly,
we view the evidence bearing on a restitution award in the light most
favorable to upholding the trial court’s order. State v. Lewis, 222 Ariz. 321,
324, ¶ 5, 214 P.3d 409, 412 (App. 2009).

2 We cite the current version of all applicable statutes unless changes
material to our decision have occurred since the date(s) of the crime.

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fund was arranged for the victim and his two older brothers. The fund was
set up to begin paying out as each of the boys turned eighteen years of age.

¶4 In the meantime, the victim’s family moved from Michigan to
Alaska. Appellant met and moved in with the victim’s father, had two
children with the father, and acted as the victim’s de facto stepmother.

¶5 When the victim turned eighteen years of age in September
2011, he began receiving monthly $3000 annuity payments from the trust
fund. The victim believed all of the annuity payments were being saved for
his anticipated college education.

¶6 At about that same time, the victim began working and
sought to cash a paycheck. The victim’s bank was closed, and Appellant
suggested he could cash his check at her bank. Unbeknownst to the victim,
however, Appellant had arranged to set up a joint bank account for her and
the victim. One of the documents ultimately presented by Appellant for
the victim to sign was an assignment of the victim’s trust fund annuity
payments to be direct deposited into the joint account. Consequently, the
victim’s monthly $3000 trust fund payments began to be electronically
deposited into the joint account, and Appellant would then transfer the
funds into her personal bank account, without the victim’s knowledge or
consent. The victim did not have access to Appellant’s separate account,
and Appellant spent the transferred annuity funds for her personal use. In
total, between September 2011 and June 2012, Appellant transferred $30,000
of the victim’s annuity funds for her personal use.

¶7 The victim’s father died unexpectedly in February 2012, after
which Appellant and the rest of the family moved to Arizona. The victim
eventually realized the trust fund money was going into the joint account
and Appellant was siphoning the money from that account, and he
arranged to have the remaining incoming trust funds sent to an account in
his name only. When Appellant learned of this, she became “hysterical,”
denied the money she had taken belonged to the victim, kicked the victim
out of the house, and “drained” the remainder of the joint account. The
victim, accompanied by his attorney, filed a report with the Snowflake-
Taylor Police Department, accusing Appellant of transferring funds from
the victim’s structured annuity trust fund to her personal bank account in
Alaska in the amount of $30,000.

¶8 Appellant testified at trial, and acknowledged transferring
and using the funds in question from September 2011 through May or June

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2012, but claimed she had done so with the victim’s permission. She denied
any intent to defraud the victim, or to misuse or hide the victim’s funds.

¶9 The jury found Appellant guilty as charged. At Appellant’s
sentencing hearing, the trial court suspended sentencing and placed
Appellant on seven years’ standard probation. As a condition of probation,
the court ordered that Appellant serve twelve months’ incarceration in the
Navajo County Jail. Appellant requested a separate restitution hearing, but
the court implicitly denied her request and ordered her to pay $30,000
restitution to the victim based on the evidence presented at trial.

¶10 Appellant filed a timely notice of appeal. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

ANALYSIS

¶11 Appellant challenges only the trial court’s restitution order,
arguing the court erred in denying her request for a separate restitution
hearing and in entering a restitution order in the amount of $30,000. We
find no error.

¶12 In general, we review a restitution order for an abuse of
discretion. Lewis, 222 Ariz. at 323-24, ¶ 5, 214 P.3d at 411-12. However, to
the extent our decision rests on a legal question, such as the interpretation
or application of statutes, our review is de novo. Id. at 324 n.2, ¶ 5, 214 P.3d
at 412 n.2; see also Coleman v. Johnsen, 235 Ariz. 195, 196, ¶ 6, 330 P.3d 952,
953 (2014) (applying de novo review to matters involving constitutional law).

¶13 “If a person is convicted of an offense, the court shall require
the convicted person to make restitution to the person who is the victim of
the crime . . . , in the full amount of the economic loss as determined by the
court . . . .” A.R.S. § 13-603(C); accord Lewis, 222 Ariz. at 324, ¶ 6, 214 P.3d
at 412. “In ordering restitution for economic loss pursuant to § 13-603,
subsection C . . . , the court shall consider all losses caused by the criminal
offense . . . for which the defendant has been convicted.” A.R.S. § 13-804(B).
“The restitution order . . . may be supported by evidence or information
introduced or submitted to the court before sentencing or any evidence
previously heard by the judge during the proceedings.” A.R.S. § 13-804(I).
The State bears the burden of proving a restitution claim by a
preponderance of the evidence. Lewis, 222 Ariz. at 324, ¶ 7, 214 P.3d at 412.

¶14 In this case, the State made clear throughout trial its position
that Appellant was responsible for the full $30,000 she took from the victim.

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In his opening statement, the prosecutor argued Appellant had “breached
her position of trust as a stepmother to obtain $30,000 from the victim.” The
victim later testified that, between September 2011 and June 2012,
Appellant had diverted and used $30,000 of his annuity funds. The victim
testified he did not make withdrawals from the joint account or use any
money from that account to make purchases, nor did he authorize
Appellant “to use that trust money to live off of.” The prosecutor again
argued in his closing argument that Appellant had taken $30,000 from the
victim between September 2011 and June 2012.

¶15 Before the sentencing hearing, the probation department
issued a presentence report stating the victim had reported to the
Snowflake-Taylor Police Department that Appellant had transferred
$30,000 from his annuity fund to her personal bank account. The
presentence report writer recommended the court order Appellant to pay
$30,000 in restitution based on the total amount of the victim’s annuity
Appellant had transferred to her bank account.

¶16 At the sentencing hearing, the prosecutor argued that,
pursuant to § 13-804(I), the court could use evidence previously presented
to determine the amount of restitution, and pursuant to A.R.S. § 13-108,
because at least one element of the offense was committed in Arizona, the
trial court had jurisdiction over the entire crime, including any annuity
money taken or spent while Appellant and the victim were in Alaska. The
prosecutor maintained that, because evidence was presented the victim did
not become aware of the crime until June 2012, the court should award the
victim “the full [$]30,000” in restitution.

¶17 Defense counsel argued that, because the jury simply had to
find Appellant received “any benefit” under the crime charged, “I don’t
think we can determine what the jury determined, whether she took the
entire [$]30,000 or part of the $30,000.” Counsel requested a restitution
hearing, arguing the jury had not specifically found she took the entire
$30,000, and counsel wanted to “go back through the exhibits” previously
admitted and examined at trial. Counsel maintained it was “not clear [from
the exhibits] who took the money out,” and, because the indictment only
included the dates February through May 2012, any money taken by
Appellant between September 2011 and January 2012, as well as during
June 2012, was “outside the Court here.” Counsel then suggested
Appellant “would stipulate to no more than $12,000” in restitution based
on the four months listed in the indictment.

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¶18 The court asked the prosecutor what authority the court had
to award the full $30,000 because “the crime was only a certain period of
time.” The prosecutor answered that “the restitution has to flow from the
crime, so there has to be a nexus, and clearly there’s a nexus here.” The
prosecutor reiterated his position that, pursuant to § 13-108, because at least
one element of the crime had occurred in Arizona, the court had jurisdiction
for restitution purposes over the whole crime, and that, pursuant to § 13-
804(I), the court could consider any of the documents or other evidence
previously presented. The court queried whether it could find that, based
on the evidence presented, Appellant had transferred and taken the full
$30,000, even though the jury had not been required to make that specific
determination, and the prosecutor responded in the affirmative. The court
then ordered that Appellant pay restitution to the victim in the amount of
$30,000.

¶19 We find no error in the trial court’s ruling. The court was
required to award restitution to the victim for the full economic loss
suffered by the victim as a result of Appellant’s actions, see A.R.S. §§ 13-
603(C), -804(B); State v. Baltzell, 175 Ariz. 437, 439, 857 P.2d 1291, 1293 (App.
1992); State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138 (App. 1992), and
the court did so.

¶20 Moreover, the evidence presented at trial supported the
finding of a clear causal nexus between Appellant’s crime and the $30,000
in restitution the court awarded to the victim for his financial loss. See State
v. Morris, 173 Ariz. 14, 18, 839 P.2d 434, 438 (App. 1992); see also State v.
Lindsley, 191 Ariz. 195, 197, 953 P.2d 1248, 1250 (App. 1997) (requiring the
restitution award to “bear[] a reasonable relationship to the victim’s loss”
(citations omitted)). Substantial evidence supported the jury’s finding that
Appellant committed the crime of fraudulent schemes and artifices when
she transferred the victim’s $3,000 monthly annuity funds to her personal
account without the victim’s permission and used the money for her
benefit.3 Further, substantial evidence demonstrated that Appellant
committed the crime over a ten-month period, from September 2011

3 Appellant asserts “there is no evidence that the Court independently
reviewed the [trial] exhibits,” but we presume the trial court considered all
relevant evidence in its decision. See generally State v. Cid, 181 Ariz. 496, 501,
892 P.2d 216, 221 (App. 1995) (“[A]n appellate court presumes that the trial
court considered all relevant mitigating factors in rendering its sentencing
decision.” (citation omitted)).

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through June 2012. Also, despite Appellant’s contention on appeal that “no
amounts were ever tallied or discussed in testimony,” the victim
specifically testified Appellant took $30,000 of his annuity funds. 4 Finally,
Appellant admitted she used “a lot” of the annuity funds for living
expenses and personal use, despite the fact she was not a beneficiary on the
trust account, and she acknowledged the victim did not have access to her
personal bank account into which she transferred his money. Appellant
also admitted she used the transferred funds from September 2011 until late
May or June 2012, although she claimed she did so with the victim’s
permission. But the victim denied authorizing Appellant to use any of the
funds from the annuity. Accordingly, the victim’s full loss was recoverable
through restitution because (1) it was purely economic, (2) the victim would
not have incurred the loss but for Appellant’s criminal conduct, and (3)
Appellant’s criminal conduct directly caused the victim’s economic loss.
See State v. Madrid, 207 Ariz. 296, 298, ¶ 5, 85 P.3d 1054, 1056 (App. 2004)
(citation omitted); see also State v. Zierden, 171 Ariz. 44, 45, 828 P.2d 180, 181
(App. 1992) (stating the trial court has an “affirmative duty” to require a
defendant to make full restitution for the economic loss sustained by the
victim).

¶21 Appellant also argues the restitution award was improper
because the award “exceed[ed] the dates of the indictment.” We find no
error on this basis.

¶22 Although some of the victim’s loss occurred while he and
Appellant lived in Alaska, Arizona has jurisdiction over an offense that a
person commits if “[t]he conduct outside this state constitutes an attempt
or conspiracy to commit an offense within this state and an act in
furtherance of the attempt or conspiracy occurs within this state.” A.R.S.
§ 13-108(A)(2). Appellant began transferring and using the victim’s annuity
funds in Alaska in September 2011, and continued to transfer and use the
victim’s annuity funds after moving to Arizona in February 2012 and
through June 2012.

¶23 Further, Appellant provides no authority, and we find none,
for the proposition that restitution must be limited to the loss a victim
experiences within the four corners of the indictment – that is, during the

4 Moreover, the trial court certainly could have considered the
presentence report writer’s recommendation that Appellant pay $30,000 in
restitution to the victim based on the total amount of the victim’s annuity
Appellant had siphoned for her personal benefit. See State v. Dixon, 216
Ariz. 18, 21-22, ¶ 13, 162 P.3d 657, 660-61 (App. 2007).

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date(s) and place(s) the indictment alleges a crime was committed. Such a
proposition would run counter to the requirement that the court award
restitution to a victim for the full economic loss suffered by the victim as a
result of the defendant’s actions, see A.R.S. §§ 13-603(C), -804(B), and we see
no reason to mechanically limit restitution awards to the dates or amounts
specified in the indictment. See United States v. McMichael, 699 F.2d 193, 195
(4th Cir. 1983) (upholding a restitution order in an amount greater than the
total amount the defendant was accused of embezzling in the indictment);
State v. Fancher, 169 Ariz. 266, 268, 818 P.2d 251, 253 (App. 1991)
(recognizing that “restitution orders in excess of amounts alleged in
charging documents on which convictions were based have been affirmed”
(citation omitted)); see also State v. Guilliams, 208 Ariz. 48, 52, ¶ 14, 90 P.3d
785, 789 (App. 2004) (stating that “the restitution statutes do not require that
a specific victim be named in a statute, indictment, or verdict form”); cf.
State v. Delgado, 174 Ariz. 252, 254, 848 P.2d 337, 339 (App. 1993)
(recognizing that “the charging document shall be deemed amended to
conform to the evidence adduced at any court proceeding” (quoting Ariz.
R. Crim. P. 13.5(b))).5 We find no error in the trial court’s decision to
consider the economic loss the victim incurred outside the dates stated in
the indictment.

¶24 Finally, Appellant contends her due process rights were
violated because the trial court chose to award restitution without holding
a separate restitution hearing. We find no violation of Appellant’s due
process rights.

¶25 Citing State v. Steffy, Appellant notes a defendant has a due
process right to contest the information on which a trial court’s restitution
order is based, 173 Ariz. at 93, 839 P.2d at 1138, and she maintains that, in
Steffy, this court further stated, “Even if the trial court believes it has
sufficient evidence to make the necessary findings for a restitution order,
due process requires that, upon request, the defendant be given the
opportunity to present evidence to contest the award.” This quote,
however, does not appear in Steffy or in any other Arizona court opinion
that may be relied on as legal precedent. See Ariz. R. Sup. Ct. 111(c). Our
research, however, indicates Appellant may have derived this quote from a
previous memorandum decision of this court, State v. Grabinski, 1 CA-CR

5 Moreover, the causal connection between Appellant’s conduct and
the loss of the victim’s money was not too attenuated factually or
temporally as it occurred over a continuous ten-month time span and
involved the same victim, the same bank accounts, and the same annuity
funds. See Guilliams, 208 Ariz. at 53, ¶ 18, 90 P.3d at 790.

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06-0835, 2009 WL 1531020, at *14, ¶ 54 (Ariz. App. June 2, 2009) (mem.
decision). Because Grabinski is a memorandum decision issued before
January 1, 2015, it has no precedential value and may not be cited for
persuasive value. See Ariz. R. Sup. Ct. 111(c)(1)(C). Moreover, the quote in
Grabinski cited by Appellant, while referencing Steffy, is necessarily limited
to the facts of that case, in which this court recognized the possibility
restitution had been improperly calculated and concluded the court should
have held a restitution hearing after the defendant requested one, given the
depth and complexity of the issues raised by the defendant, who was
ultimately ordered to pay $159 million in restitution. See Grabinski, 1 CA-
CR 06-0835, 2009 WL 1531020, at *12-14, ¶¶ 49-55.

¶26 As for Steffy, on which Appellant relies, this court merely
recognized the following, “The amount of a victim’s loss is normally
determined as part of sentencing, and that is where the objection may be
made, or a restitution hearing requested.” 173 Ariz. at 93, 839 P.2d at 1138.
In Steffy, the defendant did not request a restitution hearing, and this court
concluded he had waived any right to such a hearing. Id. Thus, Steffy did
not require a separate restitution hearing, provided that a defendant is
given the opportunity “to contest the information on which the amount of
a restitution order is based.” 173 Ariz. at 93, 839 P.2d at 1138 (citing Fancher,
169 Ariz. at 267, 818 P.2d at 252). As this court noted in Fancher,
“[r]estitution is not surrounded by the panoply of protections afforded a
defendant at trial. So long as the procedure leading to a restitution award
is such that [the] defendant is given the opportunity to contest the
information on which the restitution award is based, to present relevant
evidence, and to be heard, due process is satisfied.” 169 Ariz. at 268, 818
P.2d at 253 (citation omitted).

¶27 Here, Appellant’s due process rights were not violated
because (1) Appellant was given the opportunity to contest the amount of
restitution requested by the State at the sentencing hearing, (2) the exhibits
Appellant cited as support for her argument at the sentencing hearing had
been admitted as evidence at trial, and Appellant had been able to provide
testimony and fully cross-examine the State’s witnesses regarding those
exhibits, and (3) the court heard, considered, and rejected Appellant’s legal
argument at sentencing before awarding the victim $30,000 in restitution.
See id. The record was well-developed at trial, and Appellant has identified
no further evidence she would have offered at a subsequent hearing. There
was no due process violation of Appellant’s rights, and the restitution
award properly provided for the full economic loss sustained by the victim.

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CONCLUSION

¶28 Because there was no violation of Appellant’s due process
rights, and because the restitution award provided for the full economic
loss sustained by the victim, we affirm the trial court’s $30,000 restitution
award.

:ama

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