State v. Reed

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

RICHARD ALLEN REED, Appellant.

No. 1 CA-CR 17-0620
FILED 10-20-2020

Appeal from the Superior Court in Maricopa County
No. CR2015-117844-001
The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian B. Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant

M. Alex Harris, Chino Valley
Counsel for Intervenor Lanna Mesenbrink
 STATE v. REED
Opinion of the Court

Arizona Voice for Crime Victims, Phoenix
By Colleen Clase, Kathryn Fuller
Co-Counsel for Amicus Curiae in support of Appellee

National Crime Victim Law Institute, Portland, Oregon
By Margaret Garvin
Co-Counsel for Amicus Curiae in support of Appellee

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

T H U M M A, Judge:

¶1 This appeal is on remand from the Arizona Supreme Court,
which specified that “the only issue” for this court to decide “is whether the
restitution amount is correct.” State v. Reed, 248 Ariz. 72, 81 ¶ 33 (2020).

¶2 Defendant Richard Allen Reed, who challenged a criminal
restitution order awarding the victim attorneys’ fees, died while this appeal
was pending. This court then dismissed the appeal. State v. Reed, 246 Ariz.
138, 140 ¶ 5 (App. 2019) (rejecting constitutionality challenge and applying
Arizona Revised Statutes (A.R.S.) Section 13-106(A) (2018),1 which states
“[o]n a convicted defendant’s death, the court shall dismiss any pending
appeal.”). The Arizona Supreme Court vacated this court’s opinion,
holding the Arizona Legislature “lacked authority” to enact Section 13-
106(A). Reed, 248 Ariz. at 74 ¶ 2. In reinstating the appeal and remanding,
the Supreme Court strongly suggested that this court permit Reed’s widow,
Lanna Mesenbrink, to intervene. Reed, 248 Ariz. at 81 ¶ 31 (quoting Ariz. R.
Crim. P. 31.19(b)). On remand, this court granted Mesenbrink’s motion to
intervene, allowed supplemental briefing, has considered the arguments in
the original and supplemental briefs, and now affirms the restitution
award.

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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Opinion of the Court

FACTS AND PROCEDURAL HISTORY2

¶3 Reed was charged with voyeurism, a Class 5 felony
committed against a co-worker in January 2015. The victim hired a law firm
to represent her, assisting with determining and enforcing her rights as a
victim. The law firm performed legal services for the victim, and the victim
agreed to pay the firm for those services at established hourly rates. During
a six-month period, the firm billed 37.6 hours of attorney time and 19 hours
of paralegal time, totaling $17,909.50. Most of that time was for trial
preparation, attending trial and then seeking restitution, with the
remainder reflecting miscellaneous tasks and client communication. The
firm spent no time on civil litigation or other independent legal services.

¶4 The jury found Reed guilty as charged and the court later
placed him on probation, leaving restitution open. A motion for restitution
sought, among other things, $17,909.50 for the victim’s attorneys’ fees. After
an evidentiary hearing, the superior court issued a restitution order
awarding the victim $17,909.50 in attorneys’ fees and granting in part and
denying in part other requested restitution. Reed timely appealed the
restitution order awarding the victim attorneys’ fees. See State v. French, 166
Ariz. 247, 248 n.3 (App. 1990) (noting an “order of restitution is a separately
appealable order”).

DISCUSSION

I. The Request for Judicial Notice Is Denied.

¶5 Reed’s counsel asks this court to take judicial notice of
information about the victim’s attorney and his law firm as well as
compensation for public defenders, some of which was obtained from the
Internet. None of that information, however, was provided to the superior
court. Moreover, at the time of the restitution hearing, that information
either was available to Reed’s counsel (meaning, if relevant, it should have
been provided to the superior court) or it was not available to Reed’s
counsel (meaning it could not have been considered by the court). Because
the information was not provided to the superior court, it does not
constitute adjudicative facts relevant to whether that court erred. See Ariz.

2Additional facts and procedural history are set forth in the prior decisions.
State v. Reed, 246 Ariz. 138 (App. 2019), vacated, 248 Ariz. 72 (2020); State v.
Reed, 1 CA-CR 16-0269, 2017 WL 1325647 (Ariz. App. Apr. 11, 2017) (mem.
dec.) (affirming conviction and probation grant).
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Opinion of the Court

R. Evid. 201(a). Accordingly, the request to take judicial notice of the
information is denied. See Ariz. R. Evid. 201.

II. The Superior Court Properly Awarded the Victim Restitution for
Attorneys’ Fees She Reasonably Incurred.

¶6 Reed’s counsel raises broad challenges to the restitution
award that can be categorized as follows: (1) the fees were consequential
losses that cannot be awarded as restitution; (2) the superior court did not
determine whether the fees were reasonable; (3) there was no evidence the
victim incurred any loss; and (4) the award violated due process because it
forced Reed to pay the victim for his own prosecution. Mesenbrink does not
challenge the restitution award but claims the Clerk of Court improperly
recorded the restitution order with the County Recorder, resulting in an
improper lien on the community property she owned with Reed. The court
addresses these claims in turn.

¶7 This court reviews a restitution award for an abuse of
discretion, State v. Linares, 241 Ariz. 416, 418 ¶ 6 (App. 2017), recognizing
issues of statutory interpretation are reviewed de novo, State v. Lantz, 245
Ariz. 451, 453 ¶ 9 (App. 2018). Because restitution is neither an element of
the offense nor punishment, it need only be established by a preponderance
of the evidence. State v. Lewis, 222 Ariz. 321, 324 ¶ 7 (App. 2009). The
superior court “has wide discretion in setting restitution based on the facts
of each case.” State v. Dixon, 216 Ariz. 18, 21 ¶ 11 (App. 2007) (citation
omitted). “The court shall not consider the economic circumstances of the
defendant in determining the amount of restitution.” A.R.S. § 13-804(C).
The superior court at the restitution hearing, not this court on appeal,
properly resolves conflicting evidence; this court “view[s] the facts and all
reasonable inferences therefrom in the light most favorable to” upholding
a restitution award. Lewis, 222 Ariz. at 323, 324 ¶¶ 2, 5.

¶8 Although Reed’s counsel challenges the restitution awarded,
no contention is made that attorneys’ fees cannot be the subject of a
restitution award. Indeed, the Arizona Supreme Court has affirmed such
an award, ruling the superior court “did not abuse its discretion” in
awarding attorneys’ fees as restitution. State v. Leteve, 237 Ariz. 516, 530 ¶
58 (2015). The defendant in Leteve did not challenge the award on appeal,
and the court “assume[d], without deciding, that attorney fees incurred to
enforce victims’ rights may be compensable in restitution.” Id. This court
has affirmed restitution awards of attorneys’ fees incurred in probate
proceedings of victims who were killed. See State v. Spears, 184 Ariz. 277,
292 (1996) (finding attorneys’ fees incurred to close victim’s estate “are

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Opinion of the Court

proper restitutionary items” where no evidence indicates the fees incurred
“were unreasonable or contrary to custom”); State v. Baltzell, 175 Ariz. 437,
439 (App. 1992) (“We believe that customary and reasonable attorney’s fees
incurred to close the victim’s estate should be allowed” as restitution.).
With this background, the court addresses the specific challenges asserted
by Reed’s counsel to the restitution award in this case.

A. The Fees Awarded Were Economic Losses Recoverable as
Restitution, Not Consequential Damages Exempt from
Restitution.

¶9 A person convicted of a crime is required to make restitution
“in the full amount of the economic loss as determined by the court.” A.R.S.
§ 13-603(C); accord A.R.S. § 13-804 (authorizing restitution award “to any
person who suffered an economic loss caused by the defendant’s conduct”).
Awarding restitution under A.R.S. § 13-603(C) is mandatory, while
awarding restitution under A.R.S. § 13-804(A) “is discretionary but broad.”
State v. Leal, 248 Ariz. 1, 3 ¶ 8 (App. 2019). The victim here sought restitution
under both Sections 13-603 and 13-804.

¶10 “Economic loss” is defined as “any loss incurred by a person
as a result of the commission of an offense,” including “losses that would
not have been incurred but for the offense,” but excluding “consequential
damages.” A.R.S. § 13-105(16). As Reed’s counsel notes, “consequential
damages that are too attenuated from the crime” are not recoverable as
restitution. Linares, 241 Ariz. at 418 ¶ 9. Accordingly, to be recoverable as
restitution: “(1) the loss must be economic, (2) the loss must be one the
victim would not have incurred but for the criminal conduct, and (3) the
criminal conduct must directly cause the economic loss.” Leal, 248 Ariz. at
4 ¶ 12 (quoting State v. Madrid, 207 Ariz. 296, 298 ¶ 5 (App. 2004)); see also
State v. Wilkinson, 202 Ariz. 27, 29 ¶ 7 (2002)).

¶11 Reed’s counsel argues the fees awarded were not economic
losses but, instead, were nonrecoverable consequential damages. Reed’s
counsel variously argues the fees awarded “had no nexus to the” crime;
“were attenuated factually and temporally from the crime;” and did not
“flow directly and immediately from the crime.” It is true the fees were not
incurred at the scene of the crime and were incurred after the crime. Reed’s
counsel, however, has cited no authority for the proposition that restitution
is limited to services provided at the scene of the crime or other losses
incurred before or at the time of the crime. In arguing Reed did not steal the
fees, Reed’s counsel argues the victim could not seek reimbursement for the
cost of services the victim incurred because of Reed’s crime. That argument,

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Opinion of the Court

however, is contrary to Arizona law. See State v. Morgan, 248 Ariz. 322, 327
¶ 18 (App. 2020) (“[T]he sentencing order’s contemplation of restitution for
post-sentencing counseling expenses was not erroneous.”); State v.
Wideman, 165 Ariz. 364, 369 (App. 1990) (“The trial court correctly awarded
restitution for mental health counseling expenses.”). Indeed, Reed
stipulated to pay for the cost of therapy the victim underwent after the
crime.

¶12 Reed also asserts that the fees “had no reasonably foreseeable
connection to the crime.” But Reed offers no authority suggesting that
foreseeability, a concept found irrelevant to duty in civil negligence claims,
Gipson v. Casey, 214 Ariz. 141, 144 ¶ 15 (2007), constrains statutory
restitution in criminal cases. The fees awarded as restitution here were
incurred because of Reed’s crime, after he committed that crime but before
the restitution hearing. Accordingly, they had a nexus to the crime, and
followed and flowed factually and temporally from Reed’s crime. The
superior court, therefore, could conclude that they flowed “directly from
the defendant’s criminal conduct, without the intervention of additional
causative factors.” Wilkinson, 202 Ariz. at 29 ¶ 7.

¶13 The cases Reed’s counsel cites to argue that the fees are
consequential damages are not on point. The victim here incurred the fees
awarded as restitution in asserting her rights under the Victims’ Bill of
Rights in Arizona’s Constitution. She actually incurred the fees; they were
not a theoretical future loss. Cf. State v. Sexton, 176 Ariz. 171, 173 (App. 1993)
(concluding loss “victims might suffer in the future as the result of having
no homeowner’s liability insurance is too indirect to be the subject of
restitution under the provisions of our statutes”); State v. Pearce, 156 Ariz.
287, 289 (App. 1988) (finding lost profits and breach of a lease were
consequential damages not recoverable in restitution). Nor does the record
support the argument by Reed’s counsel that the victim’s attorney
impermissibly served as “an adjunct prosecutor.” State v. Slover, 220 Ariz.
239, 243 ¶¶ 8–9 (App. 2009) (vacating restitution award to victim’s wife for
attorneys’ fees representing “tasks that were actually the state’s
responsibility,” adding “[w]e do not address whether such fees would be
proper restitution items under other factual circumstances, such as when
the victim hires an attorney to assert a concrete right under the Victims’ Bill
of Rights”). And Reed’s counsel has not shown the restitution awarded here
is akin to the State’s seeking restitution “for costs of investigating an escape
and recapturing the escapee” or where the “’appellate court cannot
determine the basis of the restitution order from the record.’” State v.
Guilliams, 208 Ariz. 48, 51, 56 ¶¶ 7, 27 (App. 2004); accord Linares, 241 Ariz.

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Opinion of the Court

at 418 ¶ 9 (following Guilliams). Accordingly, the cases upon which Reed’s
counsel relies do not cast doubt on the restitution order.

¶14 Reed’s counsel repeatedly suggests that awarding the victim
fees as restitution constitutes an impermissible windfall. Reed’s counsel has
not shown how a restitution order reimbursing a victim for fees incurred
because of a criminal voyeurism offense constitutes a windfall for the
victim. This is not a case where the restitution award exceeded the victim’s
actual loss. See State v. Ellis, 172 Ariz. 549, 550 (App. 1992) (vacating
restitution order where amount awarded was for purchase price, not fair
market value, of personal property). Moreover, the suggestion that the
victim here received a benefit because of Reed’s criminal behavior, meaning
restitution should be offset by those benefits, is baseless. See Town of Gilbert
Prosecutor’s Office v. Downie, 218 Ariz. 466, 467 ¶ 1 (2008) (finding
“restitution to be paid by a defendant convicted of contracting without a
license may be reduced by any value conferred on the homeowner”).

¶15 On this record, Reed’s counsel has failed to show the superior
court erred in finding the attorneys’ fees were economic loss and therefore
recoverable as restitution. The court could properly conclude the attorneys’
fees the victim sought were an economic loss she incurred “as a result of
the commission” of the crime by Reed “that would not have been incurred
but for the offense.” A.R.S. § 13-105(16). Accordingly, Reed’s argument to
the contrary fails.

B. Reed’s Counsel Has Not Shown the Superior Court Failed
to Assess the Reasonableness of the Restitution Award.

¶16 Reed’s counsel argues “[t]he court erred by blanket-
approving all of [the fees requested as restitution] without examining them
for reasonableness.” This argument is not supported by the record. The
court was not required to make specific findings of fact or conclusions of
law in awarding restitution, and none were requested here. Moreover,
“judges are presumed to know the law and to apply it in making their
decisions.” State v. Trostle, 191 Ariz. 4, 22 (1997) (quoting Walton v. Arizona,
497 U.S. 639, 653 (1990)). Nor has Reed’s counsel pointed to anything in the
record to suggest the court failed to assess the reasonableness of the
restitution requested.

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Opinion of the Court

¶17 Reed’s counsel next argues that the hourly rates for the fees
awarded (around $400 per hour) were unreasonable. This argument,
however, was not presented to the superior court. Indeed, Reed presented
no evidence at the restitution hearing regarding the request for fees. The
victim’s attorney, by contrast, provided the court an affidavit, under oath,
that the rates charged and the services performed were reasonable and
consistent with fees customarily charged in the community where the
services were performed. On this record, Reed’s counsel has not shown the
applicable hourly rate was “unreasonable or contrary to custom.” Spears,
184 Ariz. at 292.

¶18 Reed argues that a $400 hourly rate is higher than what “any
judge, prosecutor, defense attorney, or any other government lawyer” is
paid. Reed also argues the victim’s attorney was “less efficient” than if the
victim had retained an experienced criminal lawyer. But these arguments
do not mean the applicable hourly rate, or the amount of the restitution
award, was unreasonable. Simply put, Reed has not shown the lawyer’s
hourly rate, or the restitution awarded, impermissibly punished the
defendant, provided the victim a windfall or was otherwise improper. See
Town of Gilbert Prosecutor’s Office, 218 Ariz. at 471–72 ¶ 25.

C. The Victim Was Obligated to Pay the Fees.

¶19 Reed’s counsel argues there was insufficient evidence to show
the victim paid or was required to pay the fees awarded as restitution. Not
so. The evidence provided to the superior court included an affidavit
stating the victim agreed to (and, accordingly, was obligated to) pay the
attorneys’ fees. The law firm the victim retained performed legal services
on the victim’s behalf and the affidavit included descriptions of the work
performed. This record allowed the superior court to conclude the victim
had a contract with the law firm to provide legal services, which obligated
the victim to pay for such services, and that the law firm performed those
services under that contract. Any uncertainty about whether the victim had
already paid for those services does not, somehow, defeat a restitution
award. See, e.g., State v. Steffy, 173 Ariz. 90, 95 (App. 1992) (holding superior
“court did not err in ordering payment of restitution for the unpaid medical
expenses to the victim even though future reimbursement may be paid by
an insurer who has not sought reimbursement”); State v. Howard, 168 Ariz.

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458, 460 (App. 1991) (affirming restitution order awarding victim future
medical expenses and future lost wages).3

D. The Victim’s Attorney Did Not Privately Prosecute Reed in
Violation of Reed’s Due Process Rights.

¶20 Reed’s counsel suggests that the victim’s attorney “acted as a
private prosecutor” and that “[i]t violates due process to allow a private
attorney, who represents the victim in a criminal case, to help prosecute the
criminal case.” The sole authority cited for this proposition is a Missouri
Supreme Court opinion that condemned “the practice of allowing private
prosecutors, employed by private persons, to participate in the prosecution
of criminal defendants” as “inherently and fundamentally unfair.” State v.
Harrington, 534 S.W.2d 44, 48 (Mo. 1976).

¶21 This issue was not raised with the superior court, and Reed’s
counsel suggests it is not being raised in this appeal. Instead, Reed’s counsel
states this argument will be raised in “post-conviction relief proceedings,”
which are not a part of this appeal. To the extent this argument is raised
here, the record is devoid of any participation by the victim’s counsel that
would run afoul of Reed’s due process rights even if Harrington applied.
The State (not the victim’s attorney) prosecuted the case against Reed, while
the victim’s attorney represented the victim and her rights. This
representation properly included offering evidence and argument at the
restitution hearing, given “[t]he state does not represent persons who have
suffered economic loss at the [restitution] hearing but may present evidence
or information relevant to the issue of restitution.” A.R.S. § 13-804(G).
Because Reed’s counsel has not shown the victim’s attorney improperly
participated in the prosecution of the case in a way that violated Reed’s due
process rights, this argument fails.

III. Mesenbrink Has Shown No Basis to Vacate the Restitution Award.

¶22 In supplemental briefing, Reed’s widow Mesenbrink does not
challenge the restitution award itself. Instead, she challenges the fact that,
after the court issued the restitution award, the Clerk of the Maricopa
County Superior Court recorded the order with the Maricopa County
Recorder. She argues the recording created a lien on community property

3 Reed’s counsel cites Kohn v. Barker, No. 015374, 2007 WL 1418514 (Mass.
Super. Ct. Apr. 4, 2007) (mem.), but has not shown that citation to a state
trial judge’s decision from another jurisdiction is proper, or that the case
supports a contrary conclusion. See Ariz. R. Sup. Ct. 111(d).
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Opinion of the Court

she owned with Reed. Without citing any applicable authority, Mesenbrink
asks this court to order that (1) community property is not subject to the
restitution order, (2) the lien be released and (3) the Clerk of the Superior
Court record this court’s decision with the County Recorder and the
Arizona Department of Transportation.

¶23 These requests appear to exceed this court’s authority on
remand from the Arizona Supreme Court, which is limited to determining
“whether the restitution amount is correct.” Reed, 248 Ariz. at 81 ¶ 33. Given
that limited remand, Mesenbrink has not shown how this court has
jurisdiction to consider her request to seek relief beyond a challenge to the
amount of restitution. See State v. Healer, 246 Ariz. 441, 448 ¶ 19 (App. 2019)
(finding trial court did not have authority to reconsider consecutive
sentences when remand was limited to whether a natural life sentence was
appropriate); see also State v. Young, 109 Ariz. 133, 134 (1973) (holding that
the “scope” of an appeal is limited to the issues on which the case was
previously remanded).

¶24 In making these requests, Mesenbrink also misconstrues this
court’s jurisdiction in this criminal appeal. “Notwithstanding any other
law, a restitution lien is created in favor of a victim of the defendant ordered
to make restitution.” A.R.S. § 13-804(L). Mesenbrink argues the restitution
order was recorded with the Recorder’s Office “by the Superior Court on
its own initiative, through the Clerk of the Superior Court.” However, the
Clerk of the Superior Court and the County Recorder are authorized
officers distinct from the Superior Court. See Ariz. Const. Art. 6, § 23 (Clerk
of Superior Court); Art. 12, § 4 (county officers); see also A.R.S. §§ 12-281 to
-290 (Clerk of Superior Court); A.R.S. §§ 11-461 to -484 (County Recorder as
County Officer). Accordingly, Mesenbrink’s suggestion that the Clerk of the
Superior Court’s recording the restitution order with the County Recorder
was, in fact, the Superior Court’s conduct is not supported by the record.

¶25 Nothing suggests that Mesenbrink has requested that the
County Recorder or the Clerk of the Superior Court revoke or cancel the
recording. Nor does it appear that Mesenbrink has sought such relief by
filing an action in the Superior Court. Moreover, the case upon which she
relies in seeking relief from this court in this criminal appeal—Alberta
Securities Commission v. Ryckman, 200 Ariz. 540 (App. 2001) —arose out of a
civil case filed in Superior Court seeking to enforce a foreign judgment.
Finally, the County Recorder and the Clerk of the Superior Court have not
been joined as parties to this appeal and Mesenbrink has not shown how
this court would have jurisdiction to provide the relief she seeks. For all
these reasons, the relief Mesenbrink requests is denied without prejudice to

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Opinion of the Court

her seeking relief in an appropriate forum by filing an appropriate action
naming and joining the necessary parties.

CONCLUSION

¶26 The restitution award is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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